CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Pay Loss Provision Does Not Preclude Assignment of Post-Loss Claim

July 30, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The court determined that a policy's loss payment provision did not bar a post-loss assignment. One Call Prop. Servs. v. Sec. First Ins. Co., 2015 Fl. App. LEXIS 7643 (Fla. Ct. App. May 20, 2015). After One Cell performed emergency water removal for the insured, the insured assigned his rights to policy proceeds as payment. One Cell alleged that Security First refused to reimburse the insured adequately for the services provided. One Cell filed suit, and Security First moved to dismiss. The trial court granted the motion based upon the policy's non-assignment provision. One Cell appealed. One Cell argued post-loss assignments were valid under Florida law even when the policy contained an anti-assignment provision, and the right to payment accrued on the date of the loss. 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 Construction Industry Lost Jobs (No Surprise) but it Gained Some Too (Surprise)

October 12, 2020 — Garret Murai - California Construction Law Blog
The announcement this week by major airlines and then by Disney that they will be laying off tens of thousands of workers is just the latest in what we already know: The coronavirus pandemic has adversely impacted workers around the world. And the construction industry is no exception, although its impacts have been uneven, and in some cases surprisingly good. According to a report by the Associated General Contractors of America, 39 states lost construction jobs between August 2019 and August 2020 while 31 states and the District of Columbia added construction jobs between July and August 2020. California saw the largest decline in construction jobs between August 2019 and August 2020, down 52,000 jobs or 5.8%, followed by by New York (-46,000 jobs/-11.3%), Texas (-39,300 jobs/-5.0%), Massachusetts (-20,200 jobs/-12.4%) and Illinois (-17,200/-7.5%). Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Pay-if-Paid Clauses, Nasty, but Enforceable

March 12, 2015 — Craig Martin – Construction Contractor Advisor
I am preparing for a presentation this week on Troublesome Contract Clauses to the Construction Specifications Institute (“CSI”), Nebraska Chapter. One of the clauses we will be discussing is the dreaded Pay-if-Paid clause, a particularly nasty provision that places the risk of owner’s solvency squarely on the subcontractor’s shoulders. While pay-if-paid clauses can create tremendous problems for subcontractors, they are enforceable. Pay-if-Paid clauses eliminate the obligation to pay the subcontractor until the general contractor is paid by the owner. Pay-if-paid clauses usually contain something akin to the following phrases:

• payment to subcontractors are “expressly and unequivocally contingent upon receipt of payment from the Owner for the Subcontract Work.”
• the subcontractor “expressly acknowledges that it relies on payment under the Subcontract on the creditworthiness of Owner, not that of the General Contractor.”
• the owner’s acceptance of the work and payment to the General Contractor are “conditions precedent to any obligation of the General Contractor to pay the subcontractor.”

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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Colorado Adopts Twombly-Iqbal “Plausibility” Standard

July 14, 2016 — Jesse Howard Witt – The Witt Law Firm Blog, Acerbic Witt
Last week, the Colorado Supreme Court announced a dramatic shift in its rules of pleading, adopting the federal courts’ requirement that a claim must be “plausible on its face” to survive a motion to dismiss. Although seemingly subtle, this change transfers much more power to district court judges and weakens the right to a jury in civil actions. For decades in Colorado, courts have held that a plaintiff’s complaint need merely provide a defendant with notice of the transaction that caused an alleged injury. Judges would not dismiss the complaint unless it appeared “beyond doubt” that the plaintiff could prove “no set of facts” which would entitle him or her to relief. See Davidson v. Dill, 180 Colo. 123, 131, 503 P.2d 157, 162 (1972), quoting Conley v. Gibson, 355 U.S. 41 (1957). This was rooted in the notion that the civil jury was the ultimate arbiter of disputed facts in American jurisprudence. Every party was entitled to have his or her “day in court” and present claims to a group of jurors selected from the community, rather than a judge appointed by the governor. Reprinted courtesy of Jesse Howard Witt, Acerbic Witt Mr. Witt welcomes comments at www.witt.law Read the full story... Read the court decision
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After Breaching its Duty to Defend, Insurer Must Indemnify

August 11, 2011 — Tred R. Eyerly - Insurance Law Hawaii

In a brief decision analyzing Oregon law, the Ninth Circuit determined that once an insurer breaches its duty to defend, it must indemnify. See Desrosiers v. Hudson Speciality Ins. Co., 2011 U.S. App. LEXIS 12591 (9th CIr. June 21, 2011).



The victim secured a judgment against the insured after he was beaten by another patron outside the insured's bar. Hudson Speciality Insurance refused to defend the insured, claiming the injury arose from an assault and battery, which excluded coverage.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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A Discussion on Home Affordability

April 08, 2014 — Beverley BevenFlorez-CDJ STAFF
Krishna Rao, in the online publication Zillow Real Estate Research, analyzed statistics on home price affordability across the United States. Rao found that “[a]cross the United States, strong home price affordability has been recently eroded by a combination of rising home prices and mortgage rates. Some areas, particularly on the West Coast, have begun to look unaffordable compared to their historic norms, forcing some household to look to the periphery of urban areas in search of affordable homes.” However, John McManus in Big Builder said a more helpful term when looking at the new home market would be “relative affordability (which inheres both payment power and access to credit).” “Little attention has been given to the fact that many builders' mix--first- and second-time move-up and higher end homes.” McManus wrote that this “has skewed pricing conversations. When the buyer is ‘discretionary,’ has access to cash and no impediment of another property to sell in order to trigger a purchase--then both base price and price elasticity can be greater.” Read the full story, Zillow... Read the full story, Big Builder... Read the court decision
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Hartford Stadium Controversy Still Unresolved

September 22, 2016 — Scott Van Voorhis - Engineering News-Record
The Hartford Yard Goats and the city of Hartford, Conn., say Arch Insurance—the surety for the dual developer/prime contractor of the minor-league baseball team’s new, unfinished stadium—has committed to helping complete the project now that the team and its developer have acrimoniously split. Read the court decision
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Reprinted courtesy of Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr.com@bnpmedia.com

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BIM Legal Liabilities: Not That Different

February 10, 2020 — Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday here at Musings, we welcome Scott P. Fitzsimmons. Scott is an attorney with the construction law firm Watt, Tieder, Hoffar & Fitzgerald, where he represents contractors, subcontractors, owners, and engineers. He is also a LEED AP and an instructor for AGC of D.C., where he teaches BIM Contract Negotiation and Risk Allocation as part of AGC’s Certificate of Management, Building Information Modeling program. When a new technology is introduced to the construction industry, contractors inevitably ask themselves one question “Great, how can this new gadget get me into trouble?” Building Information Modeling (BIM) is exactly the kind of technology that raises this fear. But, BIM has been around for a few years now, and the construction industry has done a good job of curtailing the fear of unanticipated legal liability. Nevertheless, contractors should be aware of the pitfalls BIM introduces and should know how to limit their risk arising from this new “gadget.” Often described as “CAD on Steroids,” BIM is truly much more than a simple design program. Along with early clash detection, BIM provides time and cost integration; calculates energy efficiency; and assists building maintenance long after project completion. Unlike CAD, BIM also modifies the collaborative nature of a construction project. Thus, subcontractors no longer review a design, submit shop drawings, and go to work. Rather, subcontractors are brought into the design process early in the project and often are asked to contribute to the design long before construction begins. Asking a contractor or subcontractor to provide design services appears to shift the roles of an architect and a contractor. So, the questions abound: Is a contractor now responsible for design? Can the contractor be held responsible for defective design? Do not fret. To date, there has been only one advertised case addressing BIM liability. The reason is simple. For almost a hundred years, the United States Supreme Court has held that contractors are not responsible for defective design on a traditional design-bid-build project. Using BIM, therefore, should not modify a contractor’s responsibility. But, to ensure that your obligations do not extend beyond construction, all BIM requirements should be in writing and made part of your contract. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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