Cambridge Massachusetts Building Expert Directory

Construction Litigation Roundup: “Apparently, It’s Not Always Who You Know”

December 16, 2023 — Daniel Lund III - Lexology
A respondent party in a pair of international arbitrations on the losing end of roughly $285,000,000 in adverse awards attacked the awards based upon arbitrator bias. “If there is one bedrock rule in the law of arbitration, it is that a federal court can vacate an arbitral award only in exceptional circumstances. … The presumption against vacatur applies with even greater force when a federal court reviews an award rendered during an international arbitration.” Applying the Federal Arbitration Act (according to the court, the international arbitrations were “seated” in the United States and fell under the New York Convention, such that the FAA is required to be the basis for vacatur efforts), the court examined assertions that certain alleged non-disclosures by the panel “concealed information related to the arbitrators’ possible biases and thereby ‘deprived [respondent] of [its] fundamental right to a fair and consensual dispute resolution process.’” The aggrieved party urged that one arbitrator’s undisclosed nomination of another arbitrator to serve as president of another arbitral panel – “a position that sometimes pays hundreds of thousands of dollars” – possibly influenced the second arbitrator to side with the first. Assertions were also levied that the arbitrators’ undisclosed work with the attorneys for the claimant in other arbitrations “allowed them to become familiar with each other, creating a potential conflict of interest.” Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Conflicting Exclusions Result in Duty to Defend

October 21, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Seventh Circuit affirmed the district court's finding that the insurer had a duty to defend in light of conflicting endorsements in the policy. Panfil v. Nautilus Ins. Co., 2015 U.S. App. LEXIS 14621 (7th Cir. Aug. 20, 2015). JRJ Ada, LLC was a contractor. JRJ's two members, Joe Panfil and Renee Michelon, had a CGL policy with Nautilus. The employee of JRJ's subcontractor, Astro Insulation, fell through a hole while performing insulation work, injuring himself. The employee sued JRJ, who sought a defense from Nautilus. Nautilus refused to defend because JRJ was not an insured under the policy. Further, Nautilus relied upon the policy's Contractor-Subcontrated Work Endorsement and Employee Exclusion to deny coverage. Panfil and Michelon sued Nautilus. Cross-motions for summary judgment were filed and the court granted plaitniffs' motion while denying Nautilus' motion. The district court first found that the policy should be reformed to inlcude JRJ as an insured. Nautilus did not appeal this determination. The court also found that Nautilus breached its duty to defend and was therefore estopped from asserting policy defenses to coverage. 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

California Mechanics’ Lien Case Treads Both Old and New Ground

July 27, 2020 — Garret Murai - California Construction Law Blog
People do the darnedest things. The next case, Carmel Development Company v. Anderson, Case No. H041005, 6th District Court of Appeals (April 30, 2020), involving a 10-plus year oral design and construction contract, inconsistent accounting practices, two mechanics liens, and side-agreements, takes us down some well traveled paths but also covers some new ground. Carmel Development Company v. Anderson Carmel Development Company, Inc. provided design and construction services at a luxury subdivision known as Monterra Ranch located in Monterey under an oral contract with developer Monterra LLC which spanned over more than a decade. Between 1996 and 2008, Carmel was involved in the infrastructure design and construction of the subdivision including lot design and layout, the location of building envelopes on each lot, water and sewage system layout and design, and roadway design, construction and repair. When roughly half of the lots were developed and sold Monterra ran out of money and Carmel sued. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Thank You to Virginia Super Lawyers

July 13, 2017 — Christopher G. Hill - Construction Law Musings
Thank you to all of my peers and those at Virginia Super Lawyers for nominating and electing me to the Virginia Super Lawyers Rising Stars for 2011. I am particularly honored because this puts me in a group of only 2.5% of lawyers in Virginia. I am truly honored to be a part of this list. Add this honor to my election to the Virginia Business Legal Elite in Construction Law and 2010 has been a great year for my new firm! Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

As Climate Changes, 'Underwater Mortgage' May Take on New Meaning

August 20, 2014 — James Tarmy – Bloomberg
Looking to buy a house? That’s great, unless you’re in your 20s and 30s and regularly read climate reports. They tend to project dramatic changes to the climate over the next 50 years, and given that current life expectancy is hovering around 80, we’ll likely be around to see it. So. If you’re looking to settle down for the long haul, where’s the best place to do it? Great Plains? You're looking at higher temperatures and more demand for water and energy. The Southeast, perhaps? The region may suffer from (at least) 60 days with 95-plus degree weather by 2070, according to the 2014 National Climate Assessment. Read the court decision
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Reprinted courtesy of James Tarmy, Bloomberg

The Privette Doctrine and Its Exceptions: Court of Appeal Grapples With the Easy and Not So Easy

November 18, 2024 — Garret Murai - California Construction Law Blog
In CBRE v. Superior Court, 102 Cal.App.5th 639 (2024), the 4th District Court of Appeal grappled with a thorny and not-so-thorny issue involving injured parties under the Privette doctrine. The less thorny issue was whether application of the Privette doctrine depends on whether a written contract exists between the parties. Spoiler: It does not. The thorny issue was whether the Hooker exception to the Privette doctrine – which applies when a landowner exercises control over a project – should apply where a landowner directs a contractor to perform work that is at odds with legal requirements. The CBRE Case Property Reserve, Inc. owns an office building managed by CBRE in San Diego, California. On April 9, 2019, PRI entered into a lease agreement with a new tenant for a suite in the building. The lease required that PRI perform certain tenant improvements. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Insurance Law Alert: Incorporation of Defective Work Does Not Result in Covered Property Damage in California Construction Claims

June 18, 2014 — Valerie A. Moore and Chris Kendrick - Haight Brown & Bonesteel LLP
In Regional Steel Corp. v. Liberty Surplus Ins. (No. B245961, filed 5/16/14, ord. pub. 6/13/14), a California appeals court held that the insured's use of the wrong steel seismic reinforcement hooks in construction of a mixed-use building was not an occurrence, and did not result in covered property damage. Regional Steel was the structural steel subcontractor on a 14-story mixed-use project in North Hollywood, California. Regional supplied plans which were approved by the developer and its structural engineers for installation of steel reinforcements, including seismic reinforcement hooks, to be encased in concrete. During construction, City inspectors determined that the plans called for the wrong hooks, necessitating repairs to finished portions of the work and delays in further construction. This ultimately resulted in a lawsuit between the developer, Regional Steel, the concrete subcontractor, the structural engineer and a quality assurance inspector. The project was insured under a wrap policy issued to the developer, with Regional named as an additional insured. The court rejected an argument that the wrap endorsement fundamentally changed the insurance, and the issue boiled down to whether incorporation of the wrong hooks, the damage caused by tearing out concrete to replace the hooks, or the resulting loss of use, triggered coverage. Liberty asserted that no damage to property was alleged and the purely economic losses caused by the need to reopen the poured concrete to correct the tie hook problem did not constitute "property damage" within the meaning of the policy. Liberty further posited that the tie hook problem did not constitute an “occurrence” within the meaning of the policy because the alleged damage was not caused by an accident. Reprinted courtesy of Valerie A. Moore, Haight Brown & Bonesteel LLP and Chris Kendrick, Haight Brown & Bonesteel LLP Read the court decision
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Real Estate & Construction News Roundup (1/16/24) – Algorithms Affect the Rental Market, Robots Aim to Lower Construction Costs, and Gen Z Struggle to Find Their Own Space

February 12, 2024 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
In our latest roundup, New York’s Prompt Payment Act comes into question, vacancy rates rise in commercial office space, the Biden administration applies project labor agreements on certain federal construction projects, and more!

The Biden administration announced the implementing on an executive order that will require project labor agreements on federal construction projects costing $35 million or more, likely resulting in PLAs being required on a majority of large federal jobs. (Zachary Phillips, Construction Dive)
Boeing plans to increase quality inspections of its 737 Max 9 aircraft, following a series of manufacturing flaws that have led some airlines to hold off aircraft purchases or go with its European rival, Airbus. (Ken Sweet, AP)
31% of Generation Z (generally defined as those born between 1996 and 2012) adults live at home with parents because they can’t afford to buy or rent their own space. (Jessica Dickler, CNBC)

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

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