Cambridge Massachusetts Building Expert Directory

No Coverage for Contractor's Faulty Workmanship

July 10, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Kentucky Supreme Court determined there was no coverage for the contractor's faulty workmanship in digging the existing basement of a building to make it deeper. Martin v. Acuity, 2018 Ky. LEXIS 188 (Ky. April 26, 2018). Martin Elias/Properties, LLC (MEP) purchased an older home to renovate and resell for profit. MEP hired Tony Gosney to renovate and expand the basement. Gosney agreed to dig the existing basement deeper, pour new footers and pour a new concrete floor. While performing his work, Gosney failed to support the existing foundation adequately before digging around it. Within days, the old foundation began to crack and eventually the entire structure began to sag. Gosney stopped work and notified his insurer, Acuity. 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

Property Owners Sue San Francisco Over Sinking Sidewalks

June 20, 2022 — Beverley BevenFlorez – CDJ Staff
Residents of the Mission Bay neighborhood seek “to hold the City of San Francisco responsible for raising up the sinking sidewalks” reported KRON 4. The suit alleges that the city should shoulder the responsibility for the necessary work needed for the infrastructure. Historically, “the neighborhood around the Chase Center east of Interstate 280 was part of the bay,” according to SF Gate. Later, “the area was filled with dirt and rock and further filled with rubble after the 1906 earthquake.” In 1998, further development took place. All of the “new occupied buildings in Mission Bay, such as the UCSF campus, the Chase Center and the 6,000 residential units there, are anchored into the bedrock," but "the sidewalks, streets and parks are not, and that's a problem.” "We're not asking for a handout; we're asking for a hand. We want them to step forward and make the repairs that they can actually implement," Scott Mackey, Partner at Berding | Weil, told CBS News. "Everyone understood that it's built on fill and built in an area where there would be some settlement. But, there also is an expectation that when the city turns over the infrastructure that that homeowners and property owners have to maintain, is that it's built correctly - that they're able to maintain it. The homeowners cannot continually chase the differential movement.” Read the full story at KRON 4... Read the full story at SF Gate... Read the full story at CBS News... Read the court decision
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The Road to Hell is Paved with Good Intentions: A.B. 1701’s Requirement that General Contractors Pay Subcontractor Employee Wages Will Do More Harm Than Good

November 02, 2017 — Steven M. Cvitanovic & Omar Parra - Haight Brown & Bonesteel LLP
Tales of subcontractors who close up shop before paying their employees are not all that uncommon, but they are certainly not common enough to require General Contractors to pay for that same labor twice. Last month, the California Legislature passed Assembly Bill No. 1701, which requires the General Contractor of a private construction project to pay all unpaid wages and fringe benefits owed to an employee of a subcontractor, irrespective of the tier, and even if the General Contractor made the payment. With the Governor’s recent signature, Assembly Bill No. 1701 is now the law of the land. Here is what you need to know:

It applies to all private (but not public) construction contracts entered into on or after January 1, 2018;
It gives a subcontractor’s employee a direct cause of action against the General Contractor for any unpaid wages and fringe benefits, even if the General Contractor has fully paid the subcontractor;
It gives a third party owed fringe or other benefits a cause of action against the General Contractor;
All actions by the employee or third party must be filed within one year of the earliest of the recordation of the notice of completion, the recordation of the notice of cessation of work, or the actual completion of the work;
The General Contractor cannot contract to avoid the liability imposed by Assembly Bill No. 1701, but it can seek indemnity from the subcontractor; and
At the General Contractor’s request, the subcontractor shall provide the General Contractor with its payroll records.

Reprinted courtesy of Steven Cvitanovic, Haight Brown & Bonesteel LLP and Omar Parra, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Parra may be contacted at oparra@hbblaw.com Read the court decision
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Contractual Waiver of Consequential Damages

January 02, 2019 — David Adelstein - Florida Construction Legal Updates
Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive. But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Key California Employment Law Cases: October 2018

December 11, 2018 — Alejandro G. Ruiz & Eric C. Sohlgren - Payne & Fears
This month’s key employment law cases address the test for independent contractor status, the legality of an incentive compensation system, and personal liability for wage and hour violations. Garcia v. Border Transp. Group, LLC, Cal. Ct. App. Oct. 22, 2018 Summary: Defendants must satisfy Dynamex ABC test to establish independent contractor status as defense to wage order claims, but Borello multifactor test applies to non-wage-order claims. Facts: Plaintiff leased a taxicab license and taxicab from defendants. Plaintiff brought several employment claims against defendants, including claims for whistleblower wrongful termination, unpaid wages, minimum wages, meal and rest break penalties, wage statement penalties, civil penalties under the California Labor Code Private Attorney Generals Act (“PAGA”), waiting time penalties, and unfair competition. Defendants filed a motion for summary judgment on all claims on the ground that plaintiff was an independent contractor and not an employee. Relying on the factors described in Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 256 Cal. Rptr. 543 (1989), defendant presented evidence that plaintiff set his own hours, used the cab for personal business, kept collected fares, used a radio dispatch service, entered into sublease agreements, held other jobs, and advertised services in his own name.The trial court granted summary judgment in favor of defendants. While plaintiff’s appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1 (2018), establishing a new test for independent contractor status under the definition of employment found in the California Industrial Welfare Commission Wage Orders. Reprinted courtesy of Alejandro G. Ruiz, Payne & Fears and Eric C. Sohlgren, Payne & Fears Mr. Ruiz may be contacted at agr@paynefears.com Mr. Sohlgren may be contacted at ecs@paynefears.com Read the court decision
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Real Estate & Construction News Round-Up 01/26/22

February 07, 2022 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
The future of traditional real estate skills for virtual land buys is questioned, China’s property sector might experience policy easing, U.S. commercial real estate sales set records in 2021, and more.

As the platforms and business case for virtual land buys mature, the future of traditional real estate skills remains unclear when it comes to managing virtual ownership and development. (Patrick Sisson, Bisnow)
China’s real estate sector is likely to see “significant easing” in the policies that govern it after stricter financing rules for property development set in 2020 were met with debt, causing a contraction in the market. (Reuters)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

Tennessee Court: Window Openings Too Small, Judgment Too Large

November 18, 2011 — CDJ STAFF

The Tennessee Court of Appeals has issued a ruling in the case of Dayton v. Ackerman, upholding the decision of the lower court, even as they found that the award was incorrectly computed. The Daytons purchased a house that had been designed and built by the Ackermans, who operated a construction business. The court noted that the warranty with the house promised that “for a period of 60 days, the following items will be free of defects in materials or workmanship: doors (including hardware); windows; electric switches; receptacles; and fixtures; caulking around exterior openings; pluming fixtures; and cabinet work.”

Soon, the Daytons began to experience problems with the house. Many were addressed by the Ackermans, but the Daytons continued to have problems with the windows. Neither side could specify a firm date when the Ackermans were contacted by the Daytons about the window problems. The Ackermans maintained that more than two years passed before the Daytons complained about the windows. The lower court found the Daytons more credible in this.

Initially, the Daytons included the window manufacturer in their suit, but after preliminary investigations, the Daytons dropped Martin Doors from their suit. Martin Doors concluded that the windows were improperly installed, many of them “jammed into openings that were too small for them.”

After the Daytons dismissed Martin Doors, the Ackermans sought to file a third party complaint against them. This was denied by the court, as too much time had elapsed. The Ackermans also noted that not all of the window installations were defective, however, the courts found that the Daytons ought not to have mismatched windows.

Unfortunately for the Daytons, the window repair was done incorrectly and the windows were now too small for the openings. The firm that did the repair discounted the windows and Daytons concealed the problem with plantation shutters, totalling $400 less than the original lowest estimate. However, the appeals court noted that it was here that the trial court made their computation error. Correcting this, the appeals court assessed the Ackermans $12,016.20 instead of $13,016.20.

Finally, the Ackerman’s expert was excluded as he had changed his testimony between deposition and trial. The trial reviewed the expert’s testimony and had it been admissible, it would not have changed the ruling.

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Advice to Georgia Homeowners with Construction Defects

October 02, 2013 — CDJ STAFF
NOLO Press has some advice for Georgia homeowners who have found construction defects. Their first advice is to make certain matters don’t get any worse. They note that the “the builder is not responsible for any damage that occurs to the home after you’ve discovered the problem.” You should keep records of those repairs, since you can’t get reimbursed unless you can prove what you spent. Some problems are covered under builder warranties, but usually only in the first year. But if it’s not covered, or the warranty has expired, NOLO notes that “you might not be out of luck.” The three options under Georgia law are to claim breach of contract, negligent construction, or fraud. NOLO gives the example that if the house was not built according to the plans, the builder might be found guilty of breach of contract. If the builder worked in “a shoddy manner that no other builder would use,” then it might be negligent construction. “If the builder outright lied about the quality or type of materials used,” you might have a claim for fraud. However, NOLO notes that first you must notify the builder. Under Georgia law, you have to inform the builder of the problems 90 days before you can file a lawsuit, and the builder has 30 days in which to respond to your claims. The hope of Georgia’s Right to Repair Act is to avoid a lawsuit and get the house fixed. And that’s always the best result. Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES