CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Eleventh Circuit Vacates District Court Decision Finding No Duty to Defend Faulty Workmanship Claims

November 02, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit vacated the district court's grant of summary judgment to the insurer finding there was no duty to defend. Southern-Owners Ins. Co. v. Mac Contractors of Florida, LLC, 2020 U.S. App. LEXIS 23918 (11th Cir. July 29, 2020). Mac Contractors entered into a contract with homeowners to serve as general contractor for the construction of a custom residence. Problems arose during construction and Mac eventually led the job site before completing the project. The home owners sued, alleging that Mac and its subcontractors had left the residence "replete with construction defects." Damages were sought for having to repair and remediate all defective work performed by Mac. Mac tendered under its CGL policy to its insurer, Southern-Owners. A defense was granted, but later withdrawn when Southern-Owners filed suit seeking a declaration that it owed no duty to defend or indemnify Mac. On cross-motions for summary judgment, the district court found in favor of Southern-Owners based on the exclusion for "Damage to Your Work." The Eleventh Circuit vacated on appeal, concluding that the underlying complaint could fairly be construed to allege damages that fell outside of the exclusion. 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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Three Recent Cases Strike Down Liquidated Damages Clauses In Settlement Agreements…A Trend Or An Aberration?

November 01, 2021 — Adam M. Tuckman - ConsensusDocs
Beginning more than one century ago, owners and contractors generally have adopted the convention of including liquidated damages in their contracts to fix potential liability for delay (and other losses) at the inception of the project. The proliferation of liquidated damages clauses in modern contracts can be attributed to economic and legal factors. From the owner’s standpoint, it may be exceedingly difficult to prove the actual cost impact of a delayed completion of the project. A properly calculated liquidated damages rate would save the owner the significant expense of quantifying its delay damages. On the contractor’s side, a reasonable amount of liquidated damages may be preferable to uncapped or unknown liability, allowing the contractor to more accurately price its bid and efficiently allocate risk. Coinciding with, or perhaps a leading cause of, the industry’s embrace of liquidated damages provisions, was the shift in courts throughout the country from disfavoring such clauses to accepting them (within limits) as an appropriate exercise of contract rights. While some variation exists among the states, courts have generally recognized that liquidated damages clauses are a viable alternative to proof of actual loss so long as (i) actual losses were difficult to quantify, and (ii) the stipulated sum bears a reasonable relationship to the anticipated loss at the time of contracting. See, e.g., Restatement (Second) of Contracts § 356. Conversely, a clause that penalizes the breaching party rather than serving as an estimate of probable loss is likely to be found unenforceable. Read the court decision
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Reprinted courtesy of Adam M. Tuckman, Watt, Tieder, Hoffar, & Fitzgerald, LLP
Mr. Tuckman may be contacted at atuckman@watttieder.com

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New York City Council’s Carbon Emissions Regulation Opposed by Real Estate Board

July 01, 2019 — Kristen E. Andreoli - White and William's Taking Care of Business Blog
On April 10, 2019, the New York City Council adopted Intro No. 1253 – the largest effort in a series of bills known as the Climate Mobilization Act. Intro No. 1253 enacts new regulations to reduce the city’s current largest source of carbon emissions – the operation of buildings. Jared Brey, in his April 25, 2019 article in U.S. News and World Report, “How an Evolving Movement Pushed NYC to Address the Climate Crisis,” states that “[i]n the city, around 70% of carbon emissions are produced by buildings, and around half of all building emissions are produced by just 2% of structures larger than 25,000 square feet that are covered by the bill.” The level of development, population density and relative economic power of a city such as New York have made this bill particularly interesting to other jurisdictions around the globe which may be considering their own similar legislation. In his article, Brey cites David Miller, a former mayor of Toronto and the North American regional director for C40, a group of cities coordinating strategies to meet the goals of the Paris Agreement:

“I think what New York has done is globally significant … It’s really a huge step forward, using the city’s powers and influence to directly address a huge source of greenhouse gas emissions without waiting for the national government or the international community to act.”

Several other jurisdictions have already begun to approach this issue, generally either by passing bills or creating task forces to further investigate how to meet stated emissions reduction goals. In 2018, Governor Jerry Brown of California signed an executive order with a stated goal of net-zero carbon emissions within the state by the year 2045. The California State Assembly subsequently passed a bill creating a task force to investigate the potential to reduce the emission of greenhouse gasses by both commercial and residential buildings by 2030, although their plan is not due until January 1, 2021. The city of San Jose has implemented new building standards for all new residential buildings to be net-carbon neutral by 2020, and all new commercial buildings must be so by 2030. Read the court decision
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Reprinted courtesy of Kristen E. Andreoli, White and Williams LLP
Ms. Andreoli may be contacted at andreolik@whiteandwilliams.com

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Surge in Home Completions Tamps Down Inflation as Fed Meets

June 17, 2015 — Carlos Torres – Bloomberg
American builders are tamping down what little inflation there is. Construction companies completed 392,000 buildings with five or more units at an annualized rate in May, the most since 1988, Commerce Department figures showed Tuesday in Washington. “The pickup in demand is pushing up rents and also creating more incentive for builders to put up more units,” said Michael Hanson, a senior economist at Bank of America Corp. in New York. The jump in completions “helps offset some of the upward pressure we’ve seen” on rents, said. Read the court decision
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Reprinted courtesy of Carlos Torres, Bloomberg

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In Supreme Court Showdown, California Appeals Courts Choose Sides Regarding Whether Right to Repair Act is Exclusive Remedy for Homeowners

August 10, 2017 — Garret Murai - California Construction Law Blog
Earlier, we wrote about an appellate court split concerning the Right to Repair Act (Civil Code sections 895 et seq.) which applies to construction defects in newly constructed residential properties including single-family homes and condominiums (but not condominium conversions) sold after January 1, 2003. The California Court of Appeals for the Fourth District, in Liberty Mutual Insurance Company v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, held that the Right to Repair Act does not provide the exclusive remedy when pursing claims for construction defects involving “actual” property damage (e.g., a defectively constructed roof causing actual physical damage due to water intrusion as opposed to a defectively constructed roof that while constructed improperly does not cause actual physical damage). However, the California Court of Appeals for the Fifth District, in McMillin Albany LLC v. Superior Court (2015) 239 Cal.App.4th 1132, which is currently pending before the California Supreme Court, held that the Right to Repair Act does in fact provide the exclusive remedy when pursuing claims for construction defects whether they involve “actual” property damage or merely “economic” damages. For homeowners, they would prefer the option of pursuing remedies under either or both the Right to Repair Act (which includes detailed pre-litigation procedures and statutory construction standards) or under common law claims such as negligence (which do not include pre-litigation procedures and have more flexible standards of care). The California Court of Appeals for the Third District has now thrown its hat into the ring . . . on the side of McMillan. 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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The First UK Hospital Being Built Using AI Technology

February 01, 2023 — Aarni Heiskanen - AEC Business
University Hospitals Dorset (UHD) has announced that the new Royal Bournemouth Hospital is the first hospital facility in the UK to be built using groundbreaking AI technology, which increases efficiency and decreases costs. The technology, Buildots, automatically analyses data captured at the site via helmet-mounted 360-degree cameras. The platform then generates true-to-life progress reports supported by visuals, providing managers and stakeholders with accurate, objective data and in-depth analysis, leading to improved efficiency. Evidence-Based Real-Time Analysis The Royal Bournemouth Hospital’s new BEACH building (Births, Emergency And Critical Care, Children’s Health) will include a new purpose-built maternity unit, purpose-built children’s unit, enhanced emergency department, and critical care unit. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Congratulations to Las Vegas Team on Their Successful Motion for Summary Judgment!

May 06, 2024 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
This case arose from an alleged trip and fall on an uneven surface in a parking lot outside of BWBO’s client’s restaurant. Plaintiff alleged more than $385,000 in past medical specials (with high potential for future care and treatment) with exposure in excess of $1,000,000.00. The Plaintiff named as Defendants BWBO’s client as well as several entities related to their landlord. Early in the case, Las Vegas Partner Jeffrey W. Saab and Senior Associate D. Ryan Efros moved for summary judgment based on terms of the restaurant’s lease. They argued that based on the lease, the duty to maintain the surface of the parking lot fell exclusively to the landlord, rather than the restaurant’s client. Plaintiff opposed the motion arguing that the prevailing case law held that any agreement between a tenant and its landlord does not preclude a plaintiff from asserting either or both defendants breached their duties of care. Jeff and Ryan distinguished that case and successfully persuaded the Court that there could be no contractual duty and no common law duty to maintain the parking surface, clearing the way for the court to grant summary judgment. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Excess Carrier Successfully Appeals Primary Insurer’s Summary Judgment Award

December 09, 2011 — Tred R. Eyerly - Insurance Law Hawaii

Although the excess carrier was given inadequate notice of the underlying arbitration, the trial court determined it shared responsibility with the primary carrier for the arbitration award. Finding disputed issues of fact, the Washington Court of Appeals reversed in Am. States Ins. Co. v. Century Surety Co., 2011 Wash. App. LEXIS 2488 (Wash. Ct. App. Oct. 31, 2011).

The primary insurer, American States, issued two liability policies to Professional Home Builders (PHB), a siding contractor. The policies were for successive years, 1998-1999 and 1999-2000. Each policy had annual limits of $1 million per occurrence. PHB also had a commercial excess liability policy for 1999-2000 with Century Surety Company.

PHB was sued by Residential Investment Partners (RIP) for construction defects after moisture entered the building envelope, causing decay and damage. Century’s expert determined the decay started before the 1999-2000 policy period.

RIP and PHB went to arbitration.

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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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