CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Required Contract Provisions for Construction Contracts in California

October 08, 2014 — Garret Murai – California Construction Law Blog
One question I get fairly often when drafting or reviewing construction contracts is what provisions, if any, are required in construction contracts in California. This is, of course, different than what should be included in a construction contract which is a post for another day. So, here you go: Provisions Required in All Construction Contracts There’s only one requirement applicable to all construction contracts in California. And, that is, that you must include your California contractor’s license number if you are performing or bidding on work requiring a license. California Business and Professions Code section 7030.5 requires that licensed contractors include their license number in “(a) all construction contracts; (b) subcontracts and calls for bid; and (c) all forms advertising, as prescribed by the register of contractors, used by such person.” Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Kronick Moskovitz Tiedemann & Girard
Mr. Murai may be contacted at gmurai@kmtg.com

---

Failure to Comply with Sprinkler Endorsement Bars Coverage for Fire Damage

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
Despite its application stating otherwise, the insured's failure to install a sprinkler system in its building barred coverage for extensive damage caused by fire.American Way Cellular, Inc. v. Travelers Prop. Cas. Co. of Am., 2013 Cal. App. LEXIS 425 (Cal. Ct. App. May 30, 2013). American Way contacted a broker, A&J, regarding liability and property coverage. A&J sent American Way an application for a policy with Travelers. The application indicated American Way had a sprinkler system and fire detectors in its building. Travelers issued a policy with a Protective Safeguards Endorsement For Sprinkler Locations and Restaurants. The endorsement stated that as a condition of the insurance, the insured was required to maintain a sprinkler system. An exclusions section said the insurer would not pay for loss caused by fire if there was no sprinkler system. Read the court decision
Read the full story...
Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

---

Staying the Course, Texas Supreme Court Rejects Insurer’s Argument for Exception to Eight-Corners Rule in Determining Duty to Defend

April 27, 2020 — John C. Eichman, Sergio F. Oehninger, Grayson L. Linyard & Leah B. Nommensen - Hunton Insurance Recovery Blog
In responding to a certified question from the Fifth Circuit in Richards v. State Farm Lloyds, the Texas Supreme Court held that the “policy-language exception” to the eight-corners rule articulated by the federal district court is not a permissible exception under Texas law. See Richards v. State Farm Lloyds, 19-0802, 2020 WL 1313782, at *1 (Tex. Mar. 20, 2020). The eight-corners rule generally provides that Texas courts may only consider the four corners of the petition and the four corners of the applicable insurance policy when determining whether a duty to defend exists. State Farm argued that a “policy-language exception” prevents application of the eight-corners rule unless the insurance policy explicitly requires the insurer to defend “all actions against its insured no matter if the allegations of the suit are groundless, false or fraudulent,” relying on B. Hall Contracting Inc. v. Evanston Ins. Co., 447 F. Supp. 2d 634, 645 (N.D. Tex. 2006). The Texas Supreme Court rejected the insurer’s argument, citing Texas’ long history of applying the eight-corners rule without regard for the presence or absence of a “groundless-claims” clause. The underlying dispute in Richards concerned whether State Farm must defend its insureds, Janet and Melvin Richards, against claims of negligent failure to supervise and instruct after their 10-year old grandson died in an ATV accident. The Richardses asked State Farm to provide a defense to the lawsuit by their grandson’s mother and, if necessary, to indemnify them against any damages. To support its argument that no coverage under the policy existed, and in turn, it had no duty to defend, State Farm relied on: (1) a police report to prove the location of the accident occurred off the insured property; and (2) a court order detailing the custody arrangement of the deceased child to prove the child was an insured under the policy. The federal district court held that the eight-corners rule did not apply, and thus extrinsic evidence could be considered regarding the duty to defend, because the policy did not contain a statement that the insurer would defend “groundless, false, or fraudulent” claims. In light of the extrinsic police report and extrinsic custody order, the district court granted summary judgment to State Farm. Reprinted courtesy of Hunton Andrews Kurth attorneys John C. Eichman, Sergio F. Oehninger, Grayson L. Linyard and Leah B. Nommensen Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Linyard may be contacted at glinyard@HuntonAK.com Ms. Nommensen may be contacted at leahnommensen@HuntonAK.com Read the court decision
Read the full story...
Reprinted courtesy of

---

California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings

September 28, 2020 — David Rao & Lyndsey Torp - Snell & Wilmer Real Estate Litigation Blog
The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end. On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic. On April 6, 2020, the Judicial Council of California voted to approve temporary emergency rules of court. Rule 1 prohibited the issuance of a summons, or the entering of a default, in an eviction action for both residential and commercial properties except as necessary to protect public health and safety. Rule 1 also continued all pending unlawful detainer trials for at least 60 days, with no new trials being set until at least 60 days after a request was filed. Rule 2 stayed all pending judicial foreclosure actions, tolled the statute of limitations, and extended the deadlines for responding to such actions. Rule 1 and Rule 2 were to remain in effect until 90 days after the Governor declared the state of emergency resulting from the COVID-19 pandemic lifted, or until repealed by action of the Judicial Council. On August 13, 2020, the Judicial Council voted 19-1 to sunset Rule 1 and Rule 2 as of September 1, 2020. Beginning September 2, 2020, California state courts are authorized to issue summons on unlawful detainer actions, enter defaults, and set trial dates on request. Stays on pending judicial foreclosure actions will be lifted. Reprinted courtesy of David Rao, Snell & Wilmer and Lyndsey Torp, Snell & Wilmer Mr. Rao may be contacted at drao@swlaw.com Ms. Torp may be contacted at ltorp@swlaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Virginia General Assembly Tweaks Pay-if-Paid Ban

April 03, 2023 — Christopher G. Hill - Construction Law Musings
Last year, the Virginia General Assembly passed into law a ban on the so-called pay-if-paid clauses, effective January 1, 2023. I shared my thoughts and concerns with the legislation as drafted at the time of its passage. During this most recent legislative session, and among some other construction-related bills, the General Assembly sought to clarify its past enactment. The enrolled bill fills in certain gaps in the law as follows:

• For both private and public contracts, the General Contractor, if it has good reason to withhold any payment, now has a maximum of 50 days from receipt of a proper invoice to notify its subcontractor of the reason for the withholding, including the contractual noncompliance, the amount to be withheld, and the lower-tier subcontractor responsible for the contractual noncompliance.
• For private contracts, the Owner now has 45 days in which to provide any written notice of intention to withhold payment. This notice must include the specific contractual non-compliance and the dollar amount to be withheld. NB- Owners do not need to specify the subcontractor responsible for the non-compliance.

Read the court decision
Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

---

Construction Litigation Roundup: “The Jury Is Still Out”

October 30, 2023 — Daniel Lund III - Lexology
“The Seventh Amendment guarantees the right to a trial by jury for a legal claim in a civil action.” So, isn’t the law, well, the law? Well, perhaps. Some axioms to remember in contracting are that parties are typically able to agree in a contract to anything that is lawful, and that all such lawful agreements essentially become the “law” between the parties. It is on these principles that courts issue jurisprudence which becomes binding on future litigants – for example, concerning waiver of any right to trial by jury. Hence, when a second-tier subcontractor on a federal project sought a jury for a lawsuit it had against a general contractor’s sureties, the sub was successfully rebuffed by the sureties based upon a waiver to trial by jury contained in the relevant subcontract. The court noted various matters to be considered in connection with the generally enforceable jury waiver – including the conspicuousness of the waiver (and, therefore, whether the subcontractor “knowingly” agreed to the waiver), as well as the relative bargaining power of the parties to the agreement (here, the sub was self-proclaimed to be a “leader in the construction contracting field”) – and affirmed the legality of the waiver. Read the court decision
Read the full story...
Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

---

A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

April 19, 2021 — Anthony B. Cavender - Gravel2Gavel
The federal courts have issued some significant environmental law rulings in the past few days. THE U.S. SUPREME COURT U.S. Fish and Wildlife Service v. Sierra Club, Inc. On March 4, 2021, the court held that the deliberative process privilege of the Freedom of Information Act shields from disclosure in-house draft governmental biological opinions that are both “predecisional” and deliberative. According to the court, these opinions, opining on the Endangered Species Act (ESA) effects on aquatic species of a proposed federal rule affecting cooling water intake structures—which was promulgated in 2019—are exempt from disclosure because they do not reflect a “final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary view, and the Services did not treat them as being the final or last word on the project’s desirability. The Sierra Club, invoking the FOIA, sought many records generated by the rulemaking proceeding, and received thousands of pages. However, the Service declined to release the draft biological opinions that were created in connection with the ESA consultative process. Read the court decision
Read the full story...
Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

---

More Money Down Adds to U.S. First-Time Buyer Blues: Economy

August 20, 2014 — Michelle Jamrisko and Alexis Leondis – Bloomberg
The challenges facing prospective buyers of the least expensive homes in the U.S. are getting harder to overcome. Already beset by stagnant wages, growing student debt and competition from investors who are snapping up listings, those looking to purchase moderately priced houses must also provide more cash up front. The median down payment for the cheapest 25 percent of properties sold in 2013 was $9,480 compared with $6,037 in 2007, the last year of the previous economic expansion, according to data from 25 of the largest metro areas compiled by brokerage firm Redfin Corp. The higher bar is a symptom of still-tight credit that is crowding out first-time buyers even as interest rates remain near historical lows. Younger adults, who would normally be making initial forays into real estate, are among those most affected, weakening the foundations of the housing market and limiting its contribution to economic growth. Ms. Jamrisko may be contacted at mjamrisko@bloomberg.net; Ms. Leondis may be contacted at aleondis@bloomberg.net Read the court decision
Read the full story...
Reprinted courtesy of Michelle Jamrisko and Alexis Leondis, Bloomberg

---