CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

New York Instructs Property Carriers to Advise Insureds on Business Interruption Coverage

April 13, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The New York Department of Financial Services (DFS) took the unusual step last week of instructing all property/casualty insurers to provide information on commercial property insurance and details on business interruption coverage in light of the COVID-19 outbreak. The notice is here. The notice recognizes that policyholders have urgent questions about the business interruption coverage under their policies. Insurers must explain to policyholders the benefits under their policies and the protections provided in connection with COVID-19. The explanation to policyholders is to include the following relevant information.

What type of commercial property insurance or otherwise related insurance policy does the insured hold?

Does the insured's policy provide "business interruption" coverage? If so, provide the "covered perils" under such policy. Please also indicate whether the policy contains a requirement for "physical damage or loss" and explain whether contamination related to a pandemic may constitute "physical damage or loss." Please describe what type of damage or loss is sufficient for coverage under the policy.

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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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Mortgage Interest Rates Increase on Newly Built Homes

April 30, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the National Association of Home Builders’ (NAHB) Eye on Housing, while the Federal Housing Financing Agency (FHFA) reported a decrease in mortgage interest rates for existing homes, there was an increase in mortgage rates on newly built homes: “The average contract interest rate on conventional mortgages used to purchase newly built homes actually increased in March, from 3.91 to 4.21 percent, reversing an anomalous drop to under 4 percent that occurred in February.” “The average price and loan size on conventional mortgages used to purchase newly built homes also reversed previous month declines in March,” reported Eye on Housing. “The average price increased 5.4 percent to $427,200—the second highest number on record.” Read the court decision
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Cross-Motions for Partial Judgment on the Pleadings for COVID-19 Claim Denied

May 24, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The court denied both parties' motions for partial judgment on the pleadings seeking clarification of the policy's contamination exclusion. Thor Equities, LLC v. Factory Mut. Ins. Co., 2021 U.S. Dist. LEXIS 62967 (S.D. N.Y. March 31, 2021). Thor was a commercial landlord, renting properties across the country to hundreds of tenants, for use in a variety of businesses, including office space, retail stores, restaurants, and bars. When state governments began shutting down businesses and issuing stay-at-home orders in March 2020, many of Thor's tenants had to close shop and sought abatements or other accommodations. Thor alleged it suffered significant business interruption as a result of the pandemic. 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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EPA Rejects Most of N.Y.’s $511 Million Tappan Zee Loan

September 17, 2014 — Freeman Klopott – Bloomberg
A $511 million loan approved by a New York environmental agency to help fund the construction of a new $4 billion Tappan Zee Bridge was rejected almost entirely by the U.S. Environmental Protection Agency. The loan was intended to drive down borrowing costs for the replacement span being built across the Hudson River, with half of it being provided at zero interest. The agency, the Environmental Facilities Corp., approved the borrowing in June, saying it could use the funds from a program that targets clean-water projects. The EPA said today in a letter to state officials that building a new bridge doesn’t fit the intention of the program, which is backed by federal dollars. The agency, citing the U.S. Clean Water Act, said only $29.1 million could be allowed. Read the court decision
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Reprinted courtesy of Freeman Klopott, Bloomberg
Mr. Klopott may be contacted at fklopott@bloomberg.net

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Another Exception to Fraud and Contract Don’t Mix

January 18, 2021 — Christopher G. Hill - Construction Law Musings
Here at Construction Law Musings, we’ve discussed the fact that, in Virginia, the “economic loss rule” generally renders claims of fraud and construction contracts like oil and water. This is true in most states, including Florida. What this means is that as a general rule where any party is supposed to perform under a contract, and fails to do so, the Virginia courts will dismiss a fraud claim out of a desire to avoid turning any breach of contract (read “broken promise”) case into a claim for fraud. As you have likely gathered by the title of this post, there are exceptions. One is a properly plead Virginia Consumer Protection Act (“VCPA”) claim. Another, found in a recent Loudoun County, VA Circuit Court opinion in Madison v. Milton Home Systems Inc., is so called fraud in the inducement (in other words, inducing a person to enter the contract under false pretenses). In Madison the Court analyzed several counts based upon a modular home contract and so called “performance agreement” guarantying that the home would be installed by the manufacturer in the event that it’s installer failed to perform. 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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Washington Court of Appeals Upholds Standard of Repose in Fruit Warehouse Case

August 04, 2011 — CDJ STAFF

On July 28, the Washington Court of Appeals ruled in Clasen Fruit & Cold Storage v. Frederick & Michael Construction Co., Inc. that more than six years had passed since a contractor had concluded work and so granted a summary dismissal of the suit.



Frederick & Michael Construction Co., Inc. (F&M) was contracted to construct several buildings for Clasen Fruit and Cold Storage. These were completed in March, 1999. The buildings suffered wind damage to the roofs in 2001, 2003, 2005, and 2006. In the first two incidents, F&M repaired the roofs with Clasen paying for repairs.



In 2005, Clasen hired Continuous Gutter to make repairs. The final incident was the collapse of the roof of one building. This was attributed to “excessive moisture in the roof’s vapor barriers.” At this point, Clasen demanded that F&M pay for repair and replacement costs. In 2008, Clasen sued F&M for damages for breach of contract and negligent design and construction of the roof.



The decision then covered the meanings, in Washington law, of “termination of services” and “substantial completion.” The panel concluded that construction was “substantially completed in 1997” and “relevant services” by 2001. “But Clasen did not sue until 2008, some seven years after termination of any roof related services.”



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Insurer Rejecting Construction Defect Claim Must Share in Defense Costs

March 02, 2020 — Tred R. Eyerly - Insurance Law Hawaii
One insurer, who accepted the tender of defense in a construction defect case, successfully moved for summary judgment against the second insurer, who denied the insured's tender. Interstate Fire & Cas. v. Aspen Ins. UK Ltd., 2019 N.Y. Misc. LEXIS 5800 (N.Y. Sup. Ct. Oct. 25,2019). Standard Waterproofing Corporation was hired by the construction manager, G Builders, to perform waterproofing work as part of condominium conversion project. After the project was completed,the condominium occupants experienced water damage in their units. The Condominium Board retained an engineer who reported numerous issues of water infiltration relating to Standard's work. The Condominium Board filed suit against the construction manager, who filed a third party complaint against Standard. Standard tendered to four different insurers, including plaintiff Interstate and defendant Aspen. Interstate agreed to defend, while Aspen and the other two insurers declined. Aspen argued there were no allegations of an occurrence resulting in property damage during its policy periods. Interstate filed for declaratory relief against Aspen and Standard. 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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Worker’s Compensation Exclusivity Rule Gets “Trumped” by Indemnity Provision

October 27, 2016 — Garret Murai – California Construction Law Blog
Sorry, I couldn’t help myself with the title. The next case, Aluma Systems Concrete Construction of California v. Nibbi Bros., Inc., California Court of Appeals for the First District, Case No. A145734 (August 16, 2016), discusses the interplay between indemnity provisions and the worker’s compensation exclusivity rule. The worker’s compensation exclusivity rule generally provides that worker’s compensation insurance is the exclusive remedy of employees for injuries or death arising out of the course and scope of their employment. In the Aluma case, the California Court of Appeals, addressed what happens when a subcontractor’s employees are injured on a project, sue the general contractor, and the general contractor, pursuant to an indemnity provision in its subcontract, tenders the claim to the subcontractor whose worker’s compensation insurance has already paid the employees. 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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