Cambridge Massachusetts Building Expert Directory

The Impact of Nuclear Verdicts on Construction Businesses

October 28, 2024 — Craig Tappel - Construction Executive
A rush to build at a time when the U.S. housing supply continues to fall short may come with a cost to the construction industry. Particularly in hot markets—Sun Belt states and the Mountain West—the drive to finish fast, if not big, can lead to construction and design-defect litigation. Last fall, for example, $22 million in damages were awarded to 220 unhappy homeowners in a South Carolina subdivision northwest of Charleston, four years after their claim for defective work was filed against a major U.S. homebuilder and its subcontractors. Defective work is one of three areas where the construction industry is particularly vulnerable as class-action litigation and thermonuclear verdicts surge. Another is the risk of loss of life or permanent disability on a site, and not solely involving workers: Over $860 million was awarded in 2023 to the family of a woman who was killed in a 2019 crane collapse at a Dallas construction site. Reprinted courtesy of Craig Tappel, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Best Practices: Commercial Lockouts in Arizona

April 15, 2024 — Patrick Tighe - Snell & Wilmer Real Estate Litigation Blog
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:

Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.

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Reprinted courtesy of Patrick Tighe, Snell & Wilmer
Mr. Tighe may be contacted at ptighe@swlaw.com

Indictments Issued in Las Vegas HOA Scam

January 22, 2013 — CDJ STAFF
A federal grand jury has indicted eleven individuals involved in the Las Vegas homeowners association scam. Leon Benzer, Keith Gregory, and Barry Levinson were all indicted for their roles in the scam, where conspirators took over homeowners associations in order to profit from construction defect suits. According to the Las Vegas Review Journal, all eleven were charged with conspiracy to commit mail and wire fraud. Mr. Levinson's license to practice law has been suspended due to an investigation that he misappropriated client funds. Mr. Benzer has been described as the "mastermind" of the scam. Twenty-eight defendants have plead guilty, with all but one agreeing to cooperate with investigators. The report quotes William C. Woerner, the acting special agent in charge of the FBI in Las Vegas, as saying that "today's indictment demonstrates the continued commitment of the FBI and its law enforcement partners to identify and root out public corruption at all levels." Read the court decision
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ASBCA Validates New Type of Claim Related to Unfavorable CPARS Review [i]

May 03, 2017 — John P. Ahlers - Ahlers & Cressman PLLC
For government contractors, an unfavorable performance rating review posted to the Contractor Performance Assessment Reporting System (“CPARS”) can be extremely costly. Many of the government-negotiated solicitations include past performance as an important, and sometimes even primary, evaluation factor for contract award. An unfavorable CPARS review on a past contract can cause the contractor to incur substantial extra costs in addressing the unfavorable review with contracting officers on future solicitations, and, in some instances, the contractor saddled with an unfair or inaccurate CPARS may have to challenge the review and recover some of these costs. Both the Federal Court of Claims and the Armed Services Board of Contract Appeals (“ASBCA”) have held that they have jurisdiction to hear Contract Dispute Act claims regarding unfair and/or inaccurate CPARS review. The relief available to contractors until this year was a declaration from the Court of Claims or Board that an unfair or inaccurate CPARS review was arbitrary and capricious. Neither the Board nor the Court had the authority or power to order the contracting officer to change the unfavorable review. The contractor who received a declaration from the Court or the Board regarding an unfavorable CPARS review may use it in the future to explain the unfavorable review when bidding new government work; however, the unfavorable review remains in the CPARS system and shows up on all future solicitations, the Board or Court decision notwithstanding. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers & Cressman PLLC
Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

Deterioration Known To Insured Forecloses Collapse Coverage

January 28, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The insurer properly denied coverage for collapse of a building when the insured knew from an expert’s examination that the walls of his house were deteriorating. Jaimes v. Liberty Ins. Corp., 2018 U. S. Dust. LEXIS 198224 (D. Colo. Nov. 21, 2018). The insured discovered a crack in the wall of his home. He hired Anchor Engineering to inspect. Anchor found a large bulge in the south wall. Several problems with deterioration were noted in the basement. The structure of the house was unstable and dangerous. The insured filed a claim with his homeowners insurer, Liberty. The claim was denied because damage to the wall was the result of deterioration. The south wall of the house later collapsed. The insured submitted a second claim. Liberty again denied the claim because the collapse was the result of deterioration of the wall. The insured sued. 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

U.K. Construction Growth Unexpectedly Accelerated in January

February 05, 2015 — Tom Beardsworth – Bloomberg
(Bloomberg) -- U.K. construction growth unexpectedly accelerated last month as housing strengthened and civil engineering bounced back from a contraction. Markit Economics said its Purchasing Managers’ Index rose to 59.1 from 57.6 in December. A reading above 50 indicates expansion. Economists forecast the gauge would fall to 57, according to the median estimate in a Bloomberg News survey. Read the court decision
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Reprinted courtesy of Tom Beardsworth, Bloomberg
Mr. Beardsworth may be contacted at tbeardsworth@bloomberg.net

Breach Of Duty of Good Faith And Fair Dealing Packaged With Contract Disputes Act Claim

March 27, 2023 — David Adelstein - Florida Construction Legal Updates
An interesting opinion on a motion to dismiss came out of the United States Court of Federal Claims dealing with the claim that the government breached its duty of good faith and fair dealing in administering the prime contract. The contractor’s argument was that the government breached its duty of good faith and fair dealing by denying the contractor’s claim under the Contract Disputes Act (CDA). This was a creative claim and argument that deserves consideration because it tied in the contracting officer’s denial of the CDA claim for additional money with a breach of the duty of good faith and fair dealing. In this case, Aries Construction Corp. v. U.S., 2023 WL 2146598 (Fed. Cl. 2023), a prime contractor was hired for a water pipeline construction project. The contractor encountered unexpected difficult site conditions that required additional equipment and labor. The contractor informed the contracting officer and alleged it was instructed to proceed with the additional equipment and labor. The contractor submitted a claim under the CDA but the contracting officer denied the claim. The contractor pursued the claim in the United States Court of Federal Claims arguing the government breached the contract and, of interest, breached its duty of good faith and fair dealing. The government moved to dismiss the breach of good faith and fair dealing claim arguing that besides failing to state a cause of action the Court of Federal Claims had no jurisdiction because the breach of the duty of good faith and fair dealing was not properly presented to the contracting officer under the CDA. The Court of Federal Claims denied the government’s motion. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Beth Cook Expands Insurance Litigation Team at Payne & Fears

September 30, 2024 — Beth A. Cook - Payne & Fears
Beth Cook has joined Payne & Fears LLP as Counsel in the firm’s Insurance Litigation Group. With 18 years of legal experience, Beth brings a wealth of knowledge to her practice, focusing on insurance coverage and litigation. “We are excited to welcome Beth to P&F! She brings a great deal of experience to our Insurance Litigation Group as we continue to grow the practice group,” said Sarah Odia, the group’s co-chair. “We look forward to working with Beth and welcome her fresh perspectives.” Get to Know Beth What activities do you enjoy outside of work? Travel, sporting events, movies, craft breweries, and wineries. Read the court decision
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Reprinted courtesy of Beth A. Cook, Payne & Fears
Ms. Cook may be contacted at bac@paynefears.com

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