CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

When Are General Conditions and General Requirements Covered by Builder's Risk

December 18, 2022 — Michael V. Pepe & Grace V. Hebbel - Saxe Doernberger & Vita
General conditions and general requirements are terms of art in the construction industry that describe the indirect costs necessary to complete a construction project. After physical loss or damage to a project, the following question often arises: Are “general conditions” and “general requirements” covered under a builder’s risk policy? General Conditions vs. General Requirements General conditions are usually described as the cost of managing a construction project. Examples include salaries for personnel like project managers, supervisors, engineers, field office staff, as well as the cost of field trailers, office equipment and supplies, and anything necessary to support the staff. General requirements are the non-management indirect costs of executing the project, including items such as pre-development costs, permits, security, dumpsters, fences, temporary lighting, worker amenities, and clean-up costs. Reprinted courtesy of Michael V. Pepe, Saxe Doernberger & Vita and Grace V. Hebbel, Saxe Doernberger & Vita Mr. Pepe may be contacted at MPepe@sdvlaw.com Ms. Hebbel may be contacted at GHebbel@sdvlaw.com Read the court decision
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#10 CDJ Topic: Carithers v. Mid-Continent Casualty Company

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Craig Martin of Lamson Dugan and Murray, LLP on his Construction Contractor Advisor blog used the Carithers case to demonstrate how “[w]hen you are involved in construction litigation, you have battles on several fronts, including those against subcontractors, owners, insurers and the court. Shoring up your defenses on each of these fronts is imperative, or you may lose the battle or, worse yet, the war.” Martin discusses the various “battle fronts” including the “Claim Against Contractor,” “Where Are You Litigating,” “Claim Against Insurance Company,” and “Damages.” Read the full story... In the article, “Duty to Defend Construction Defect Case Affirmed, Duty to Indemnify Reversed In Part,” attorney Tred R. Eyerly also covered the Carithers case. Eyerly explained, “Determining whether there was coverage for the damages awarded required the court to decide which trigger applied. Examining the policy language, the court determined that property damage occurred when the damage happened, not when the damage was discovered or discoverable. Therefore, the district court did not err in applying the injury in fact trigger.” Read the full story... Read the court decision
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Colorado’s Three-Bill Approach to Alleged Construction Defect Issues

May 01, 2014 — Beverley BevenFlorez-CDJ STAFF
According to the Denver Post, two Colorado construction defect bills have “made their way out of the Senate Affairs Committee Wednesday, with a third reportedly on its way.” The two bills that have made it out of committee are SB 219 and SB 216: “SB 219 would require the Colorado Division of Housing to prepare a study to present to legislators before March 15, 2015, on why there isn't more affordable housing construction in the state,” the Denver Post reported. “SB 216 directs the Colorado Division of Housing to design a program to rebate a portion of the insurance premiums builders pay as a way to boost their willingness to build more projects.” However, a third bill would require “homeowners to pursue arbitration or mediation before litigation.” All three bills are sponsored by Sen. Jessie Ulibarri, D-Commerce City. Read the court decision
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Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims

August 30, 2017 — Rick Erickson - Snell & Wilmer Real Estate Litigation Blog
On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.” In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty. Read the court decision
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Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr Erickson may be contacted at rerickson@swlaw.com

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Indiana Federal Court Holds No Coverage for $50M Default Judgment for Lack of Timely Notice of Class Action

August 26, 2019 — Anthony L. Miscioscia and Timothy A. Carroll - White and Williams LLP
In Greene v. Kenneth R. Will, a CGL insurer recently prevailed in a declaratory judgment action arising from an underlying class action alleging pollution and nuisance claims against the insured, VIM Recycling LLC, an Indiana-based waste-recycling facility.[1] “[T]his case has some whiskers on it,” the Indiana federal district court recounted in its exhaustive decision granting the insurer relief. The court relieved the insurer of indemnifying a $50 million default judgment against the insured, which, the court observed, “proved to be a bad neighbor” and “nuisance in both the legal and colloquial sense.” The court held that the insured failed to provide timely notice of the class action. “The judgment against the [insured] came about when a group of nearby homeowners decided that they had had enough of VIM’s polluting behavior and brought this class action to recover damages for environmental violations, nuisance and negligence based on the impact of the waste facility on their homes and property,” the court explained. Eventually, the court entered a default judgment against the insured for $50,568,750, plus an award of $273,339.85 in attorney’s fees. Because the insured was “judgment-proof,” the class action plaintiffs “aligned” with the insured “hoping to collect on their monumental judgment” from the insured’s CGL insurer. Within a few weeks’ time, the class action plaintiffs sued the insurer seeking a declaration of coverage for the default judgment against the insured. Reprinted courtesy of Anthony L. Miscioscia, White and Williams LLP and Timothy A. Carroll, White and Williams LLP Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Mr. Carroll may be contacted at carrollt@whiteandwilliams.com Read the court decision
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California Committee Hosts a Hearing on Deadly Berkeley Balcony Collapse

April 28, 2016 — Beverley BevenFlorez-CDJ STAFF
According to Mercury News, state Senators Jerry Hill and Loni Hancock scheduled the hearing in Sacramento with state and local agencies to discuss their response to the Berkeley, California balcony collapse incident that killed three people and severely injured seven others. The agencies also testified regarding “best practices and disclosure requirements for licenses.” Hill and Hancock are the sponsors of Senate Bill 465 that “would require companies to report certain settlements to the Contractors State License Board, and in some cases to the public.” Investigators of the Berkeley balcony incident alleged “that crews applied waterproofing to wet wood during construction. Water was trapped inside, which led to severe dry rot and the catastrophic collapse,” reported Mercury News. Read the court decision
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10 Year Anniversary – Congratulations Greg Podolak

November 23, 2016 — Edwin L. Doernberger – Saxe Doernberger & Vita, P.C.
2016 marks 10 years of successful practice for SDV Partner, Gregory Podolak. Greg has spent his entire professional career with Saxe, Doernberger & Vita, rising up the ranks from Summer Associate to Managing Partner of SDV’s first satellite office located in Naples, FL. Greg also manages SDV’s Cyber Risk group and is a nationally recognized author and speaker on the topic. Over the past decade, Greg has been honored with numerous awards, including the Connecticut Law Tribune’s 2015 New Leaders in the Law, and for the past five years in a row has been chosen as a Super Lawyers® Rising Star. Read the court decision
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Reprinted courtesy of Edwin L. Doernberger, Saxe Doernberger & Vita, P.C.
Mr. Doernberger may be contacted at eld@sdvlaw.com

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Hawaii Bill Preserves Insurance Coverage in Lava Zones

May 20, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The Hawaii legislature passed a bill in its recently concluded session to protect homeowners and businesses affected by lava flows from losing coverage. The Puna district on the Big Island was severely impacted by the Pu`u O`o lava flow as it crept closer to homes, businesses, schools and populated areas. Problems were created by the imposition of a moratorium on the sale of new policies in certain areas of the Puna district. SB 589 grants relief to homeowners who have had continuous insurance in lava zone areas that are declared to be in a state of emergency. The bill (1) allows the homeowners to have their policies renewed, (2) permits continued coverage for homeowners who wish to sell their homes, (3) grants coverage for new buyers of an insured property, and (4) allows homeowners who have not previously had insurance to purchase coverage from the Hawaii Property Insurance Association. 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

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