Cambridge Massachusetts Building Expert Directory

Risk Transfer: The Souffle of Construction Litigation

December 13, 2022 — Alexa Stephenson & Ivette Kincaid - Kahana Feld
Who does not love a good souffle?! Enthusiasts will know that a great souffle is not something you can obtain quickly. Rather, it is common in restaurants to order the souffle as dessert at the beginning of the meal because it takes an hour to bake. Risk transfer – like a good souffle – also requires planning, preparation, and the right ingredients. In construction litigation, attorneys are often not retained until after the project has been completed for several years as the dispute between the homeowner and the general contractor or developer took time to escalate to formal litigation. A significant part of defense counsel’s legal analysis involves assessing and evaluating risk transfer opportunities. For example, in the case of a general contractor or developer who did not self-perform the construction work but instead retained subcontractors to do so, counsel will assess if risk can be transferred from the general contractor or developer to the subcontractors who performed the work which the homeowners allege is defective. In other words, a developer or general contractor can reduce their risk (i.e. liability and money owed) by transferring said risk (i.e. pointing the finger at) to a third party. Sounds easy, right? Unfortunately, just like the souffle making process, it is easier said than done. This task can be exceedingly difficult in the absence of contracts that contain strong indemnity and insurance provisions – the essential ingredients to effect risk transfer. Worry not! We have provided “baking” instructions for you below to help you get a great risk transfer souffle time and again. Reprinted courtesy of Alexa Stephenson, Kahana Feld and Ivette Kincaid, Kahana Feld Ms. Stephenson may be contacted at astephenson@kahanafeld.com Ms. Kincaid may be contacted at ikincaid@kahanafeld.com Read the court decision
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California Supreme Court Addresses “Good Faith” Construction Disputes Under Prompt Payment Laws

June 06, 2018 — Garret Murai - California Construction Law Blog
It’s been a rollercoaster. But the ride appears to be over. In United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., Case No. S231549 (May 14, 2018), the California Supreme Court addressed whether a direct contractor can withhold payment from a subcontractor based on the “good faith dispute” exception of the state’s prompt payment laws if the “dispute” concerns any dispute between the parties or whether the dispute must be directly relevant to the specific payment that would otherwise be due. California’s Prompt Payment Laws California has a number of construction-related prompt payment laws scattered throughout the state’s Civil Code, Public Contracts Code and Business and Professions Code. Their application depends on the type of construction involved, whether public or private; the type of payment involved, whether a progress payment or retention; and who is paying, whether it’s a private owner, public entity, direct contractor, or subcontractor. 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

Thank You Once Again for the Legal Elite Election for 2022

December 18, 2022 — Christopher G. Hill - Construction Law Musings
Thank you once again to those in the Virginia legal community who elected me to the Virginia Business Legal Elite in the Construction Law category for the 16th consecutive year. The 16 consecutive years of election to the Legal Elite in the Construction Category span my time as a solo construction attorney. The fact that you all have continued to elect “100%” of the lawyers at The Law Office of Christopher G. Hill, PC for the last 12 years is most gratifying and only confirms that my decision to “go solo” over 12 years ago was a good one. To be included in this list of top construction attorneys is both humbling and gratifying. For the complete list of the Virginia construction lawyers that were elected along with me, see the 2022 Virginia Business Legal Elite in Construction Law. So without further ado, thank you to all of you who voted for me. I truly appreciate your continued confidence and support of my construction law practice. Your yearly votes always prod me to learn and continually improve to meet your expectations and keep my practice at this high level. I also couldn’t do this without the great support from friends and family (not to mention clients), so my gratitude goes out to these great folks. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

California Appellate Court Holds “Minimal Causal Connection” Satisfies Causation Requirement in All Risk Policies

July 20, 2020 — Scott P. DeVries & Michael S. Levine - Hunton Andrews Kurth
On May 26, 2020, a California Court of Appeals (4th District) issued its decision in Mosley et al. v. Pacific Specialty Ins. Co. The case arose in the context of a marijuana-growing tenant who rerouted a home’s electrical system and caused an electrical fire. The issue was whether the homeowner’s policy covered the loss. The trial court granted the insurer’s motion for summary judgment and, in a divided decision, the Court of Appeals reversed in part. The policy excluded losses “resulting from any manufacturing, production or operation, engaged in … the growing of plants.” The parties agreed that the fire resulted from the rewiring of the electrical system, but disagreed on “whether that means the damage” “result[ed] from” “the growing of plants.” The Court held that “resulting from” “broadly links a factual situation with the event creating liability, and connotes only a minimal causal connection or incidental relationship.” In doing so, it equated the terms “results from” and “arising from.” Concluding that a “common sense” approach was to be used, it found a “minimal causal connection” to be present. This expansive standard could be beneficial to policyholders in arguing the causal connection between COVID-19 and ensuing business interruption losses; specifically, that the pandemic, a covered event, is the underlying and proximate cause of the insureds’ physical loss and/or damage and the insured’s resulting business interruption loss, and that intervening events, whether they be orders of civil authority, prevention of ingress/egress or otherwise, would not sever the chain of causation. Reprinted courtesy of Scott P. DeVries, Hunton Andrews Kurth and Michael S. Levine, Hunton Andrews Kurth Mr. DeVries may be contacted at sdevries@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Read the court decision
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Veolia Agrees to $25M Settlement in Flint Water Crisis Case

February 19, 2024 — James Leggate - Engineering News-Record
Engineering firm Veolia North America agreed to a $25-million settlement to resolve a federal class action case related to its work for the city of Flint, Mich., during the city’s lead-in-water crisis, the company and attorneys for the plaintiffs announced Feb. 1. Veolia is the second engineering firm that worked for the city to settle with city residents, and the deal came ahead of a class-action trial scheduled to start later this month. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Another Reminder that Your Construction Contract Language Matters

June 06, 2018 — Christopher G. Hill - Construction Law Musings
Here at Musings, I have often (some might say too often) discussed the fact that in Virginia (as well as other places), your construction contract language will be strictly enforced. I have also discussed the need for attorney fees provisions as well as other language in order to mitigate your risk as a contractor. A recent case from the City of Roanoke Circuit Court discussed both of these principals and their intersection. In LAM Enterprises, LLC v. Roofing Solutions, Inc., the Roanoke Court looked at a contract between LAM and Roofing Solutions, Inc. that contained two provisions of the construction contract between the parties. The first provision limited the liability of Roofing Solutions to the contract price. The second provision is a relatively typical “prevailing party” attorney fees provision in which the winner of any lawsuit would be entitled to collect its attorney fees. For the specific language of these provisions, I commend the opinion linked above for your reading. 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

The Condominium Warranty Against Structural Defects in the District of Columbia

September 07, 2017 — Nicholas D. Cowie - Maryland Condo Construction Defect Law Blog
The District of Columbia Condominium Act contains a statutory warranty that protects condominium associations and their unit owner members from structural defects in newly constructed and newly converted condominiums. The warranty is backed by a condominium developer’s bond, letter of credit, or other form of security from which monies can be drawn upon if the developer fails to make warranty repairs. This article discusses how the warranty against structural defect works and how to make claims against the developer’s security to fund warranty repairs. THE CONDOMINIUM WARRANTY AGAINST STRUCTURAL DEFECTS Condominium developers in Washington DC are required by statute to warrant against structural defects in the condominium common elements and each condominium unit. District of Columbia Condominium Act (“DC Condo Act”) 42-1903.16(b). Read the court decision
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Reprinted courtesy of Nicholas D. Cowie, Cowie & Mott, P.A.
Mr. Cowie may be contacted at ndc@cowiemott.com

New Defendant Added to Morrison Bridge Decking Lawsuit

March 26, 2014 — Beverley BevenFlorez-CDJ STAFF
The Morrison Bridge in Multnomah County, Oregon, has added a new company to their lawsuit regarding problems with the slip-resistant FRP decking, according to The Oregonian. The county has already named the installer, the supplier, and the manufacturer. Now, they have added Hardesty & Hanover, LLP, the company “that contracted with the decking manufacturer to provide engineering and design for the project.” The Oregonian reported that “the county has identified a construction design professional who can testify that Hardesty & Hanover made errors that contributed to the Morrison Bridge's damage,” according to the amended complaint. First, Conway construction (the deck installer) filed suit against the decking manufacturer and supplier. Then, the “county inserted itself into the suit last fall,” stated The Oregonian, and “is seeking more than $2 million to repair or replace the decking, plus damages.” A trial is scheduled for February 2015. Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES