CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Timely and Properly Assert Affirmative Defenses and Understand Statutory Conditions Precedent

August 05, 2024 — David Adelstein - Florida Construction Legal Updates
A recent case serves as a reminder to TIMELY and PROPERLY assert affirmative defenses and to understand statutory conditions precedent to construction lien claims. Failing to do one or the other could be severely detrimental to the position you want to take in a dispute, whether it is a lien foreclosure dispute, or any other dispute. In Scherf v. Tom Krips Construction, Inc., 2024 WL 3297592 (Fla. 4th DCA 2024), the president of a construction company and his wife were building a residence. They orally accepted the proposal from the concrete shell contractor and asked for invoices to be submitted to the president’s construction company. No written contract was memorialized. The president and his wife did not pay the concrete shell contractor and the contractor recorded a lien and sued to foreclose on the lien. Years later (the case had been stayed because the president and his wife filed for bankruptcy and the shell contractor had to get leave of the automatic bankruptcy stay to pursue the lien foreclosure), the shell contractor moved for summary judgment. The president and his wife moved for leave to file an amended answer and affirmative defenses. They claimed the oral contract was with the construction company and the shell contractor was required to serve a Notice to Owner under Florida Statute s. 713.06. Alternatively, they argued that if the oral contract was with the president and his wife, the shell contractor was required to serve a Final Contractor’s Payment Affidavit at least 5 days before filing its lien foreclosure claim, and did not, as required by s. 713.06. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Solicitor General’s Views to Supreme Court on Two Circuit Court Rulings that Groundwater Can be Considered “Waters of the United States”

March 04, 2019 — Anthony B. Cavender - Gravel2Gavel
On December 3, 2018, the U.S. Supreme Court invited the Solicitor’s views on the contested issues whether discharges to groundwater are subject to an he National Pollutant Discharge Elimination System (NPDES) permit, and whether there is an “ongoing violation” of the Clean Water Act for Citizen Suit jurisdiction when the source of the pipeline spill has been fixed, yet not all pollutants have been cleaned up. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Jobsite Safety, Workforce Shortage Drive Innovation in Machine Automation

August 07, 2018 — Scott Crozier - Construction Executive
From driverless cars and drones, to robots working in operating rooms, manufacturing plants and fast food restaurants, machine automation is making headlines – and will continue to do so for the foreseeable future. And when it comes to machine automation, the construction industry is poised to be a hotbed of innovation. Equipment manufacturers and technology providers in the construction industry have the benefit of using the lessons learned from the manufacturing and automotive industries to meet the needs of contractors, project owners and machine operators through more efficient, highly automated equipment. According to the Society of Automotive Engineers (SAE), there are six stages of automation, ranging from zero autonomy to full automation, where a vehicle is capable of performing all driving functions under all conditions. The construction industry is somewhere in the middle of these six stages, with some automation functionality available on some equipment today, but still requiring an operator to remain engaged with the driving task and the environment. Reprinted courtesy of Scott Crozier, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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One Shot to Get It Right: Navigating the COVID-19 Vaccine in the Workplace

January 18, 2021 — Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren - Construction Executive
The Food and Drug Administration has granted Emergency Use Authorization for Pfizer and Moderna’s COVID-19 vaccines. As COVID-19 cases continue to rise, employers across all industries may be considering whether to adopt a vaccination policy requiring vaccination as a condition of working and/or accessing the workplace or jobsite. The FDA’s recent authorization of the COVID-19 vaccine raises several legal and practical issues that employers may wish to consider as they prepare for widespread distribution and availability of the vaccine in 2021. Mandating the COVID-19 Vaccine in the Workplace The Equal Employment Opportunity Commission recently issued guidance suggesting that employers may mandate that employees receive the COVID-19 vaccination, subject to certain limitations. The EEOC has taken the position that administration of the COVID-19 vaccine does not implicate the Americans with Disabilities Act (ADA) because administration of the vaccine is not a medical examination. Under the EEOC’s guidance, employers, regardless of the industry, may require that employees receive the COVID-19 vaccine without having to justify that the mandate is job related and consistent with business necessity. Beyond that, construction employers should be aware of numerous issues and risks associated with mandatory vaccine policies. Reprinted courtesy of Natale DiNatale, Stephen W. Aronson, Britt-Marie K. Cole-Johnson, Emily A. Zaklukiewicz, Kayla N. West & Abby M. Warren of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

January 04, 2021 — Christopher C. Broughton, Jones Walker LLP - ConsensusDocs
Introduction The right to offset refers to the common sense ability to reduce or eliminate your payment obligations to a party who owes you money on another contract. With offsets, common law largely tracks common sense. The right of offset is recognized by statute and court decisions in many states as well as under federal law and the U.S. Bankruptcy Code. The right to offset can also be established in the contract or subcontract. But like many things that may seem simple, the right to offset can easily become complex. This article provides an overview of the extent and limits of the right to offset varies from state to state and with federal government contracts about the extent and limits of the right of offset. Construction trust fund statutes add another layer of complications. These variations may not be obvious or intuitive, but they have a tremendous impact on your right to get paid or your right to withhold payment. Because of the variations, you must always confirm the law applicable to your contract or subcontract, which may not be where the project or you are located. Read the court decision
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Reprinted courtesy of Christopher C. Broughton, Jones Walker LLP
Mr. Broughton may be contacted at cbroughton@joneswalker.com

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Patriarch Partners Decision Confirms Government Subpoenas May Constitute a “Claim” Under D&O Policy; Warns Policyholders to Think Broadly When Representing Facts and Circumstances to Insurers

January 08, 2019 — Michael S. Levine, Sergio F. Oehninger, & Joshua S. Paster - Hunton Andrews Kurth
The Second Circuit recently confirmed in Patriarch Partners, LLC v. Axis Insurance Co. that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation, which ripened into a “Claim” prior to the policy’s inception date. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy. Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Sergio F. Oehninger and Joshua S. Paster Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Paster may be contacted at jpaster@HuntonAK.com Read the court decision
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Contract Change #8: Direct Communications between Owners and Contractors (law note)

March 28, 2018 — Melissa Dewey Brumback - Construction Law in North Carolina
As the Engineer or Architect of Record, you probably have frequently experienced Owners and Contractors communicating directly, in direct contravention of the language of the contract that requires them to endeavor to route all communications through the design team. With the latest version of the 201, direct communication is now authorized, to recognize both the reality of what was happening on the ground and to recognize that sometimes Owners and Contractors may need to communicate without waiting for the design team. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Construction Law in North Carolina

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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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