CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

CDJ’s #2 Topic of the Year: Ewing Constr. Co., Inc. v. Amerisure Ins. Co., 2014 Tex. LEXIS 39 (Tex. Jan.17, 2014)

December 31, 2014 — Beverley BevenFlorez-CDJ STAFF
Ewing received quite a bit of attention around the blogosphere, and Tred R. Eyerly of Damon Key Leong Kupchak Hastert wrote a nicely succinct case summary on his blog, Insurance Law Hawaii: “In a much anticipated decision, the Texas Supreme Court ruled that a general contractor who agrees to perform its work in a good and workmanlike manner does not "assume liability" for damages arising out of its defective work so as to trigger the Contractual Liability Exclusion.” Read the court decision
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Spearin Doctrine as an Affirmative Defense

November 30, 2016 — David Adelstein – Florida Construction Legal Updates
The Spearin doctrine, referred to as the implied warranty of constructability doctrine, is oftentimes utilized as an affirmative defense by a contractor being sued for construction defects. Under the Spearin doctrine (recognized in the government contract setting), a contractor is NOT liable for defects in the plans and specifications furnished by the owner if the contractor constructs the project pursuant to the plans and specifications. This is because the owner impliedly warrants the constructability of the plans and specifications it furnishes to the contractor. Hence, the contractor should not be liable for defective construction caused by the owner furnishing defective plans and specifications. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

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The Power of Planning: Four Key Themes for Mitigating Risk in Construction

November 09, 2020 — Zac Hays - Construction Executive
Construction is, and always has been, known as a relatively risky business. Whether it is dealing with factors that can be controlled or beyond control, proactively managing risk has proven to be of the most critical factors in delivering quality projects faster, more efficiently and with wider margins. Many people assume on-site activities introduce the greatest amount of uncertainty and potential risk. But many mistakes in construction originate in the planning phase – meaning preconstruction is ripe with opportunity to be the most effective place for mitigating risk, saving money and ultimately broadening margins. There are many ways to mitigate risk before projects even start, but four key themes emerge to be clear, repeatable opportunities for success. DIGITIZE THE PLANNING PHASE Preconstruction is where ideas are brought to life by translating architectural designs into a real, constructible plan. Decisions made at this stage can determine the project’s success and profitability – but it’s far from straightforward. Estimating, scheduling and planning are highly complex activities that depend on constantly changing details and are all areas where missed information or miscommunication can lead to costly rework down the line. Reprinted courtesy of Zac Hays, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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As of July 1, 2024, California Will Require Most Employers to Have a Written Workplace Violence Prevention Program (WVPP) and Training. Is Your Company Compliant?

June 17, 2024 — Jason L. Morris & Louis "Dutch" Schotemeyer - Newmeyer Dillion
The California legislature passed Senate Bill 553 (SB 553) in 2023. This bill requires most California employers to implement a written Workplace Violence Prevention Program (WVPP) and to train employees on the WVPP. At Newmeyer Dillion, we are dedicated to helping you navigate these requirements and maintain a safe, compliant work environment. Act Now: Two Weeks to Comply With SB 553's July 1st compliance deadline, employers have just two weeks to develop and implement a compliant Workplace Violence Prevention Program (WVPP). The clock is ticking, and it is imperative to act swiftly to ensure compliance and protect your employees. What is SB 553? SB 553 is a legislative measure aimed at enhancing workplace safety by mandating specific actions from employers to prevent workplace violence. This bill recognizes the growing concern around workplace violence incidents and the need for proactive measures to maintain a safe workplace. The key components of SB 553 include:

1. Establishment of a Workplace Violence Prevention Program (WVPP): Employers are required to develop and implement a comprehensive written WVPP tailored to their specific workplace environment and risks.

Reprinted courtesy of Jason L. Morris, Newmeyer Dillion and Louis "Dutch" Schotemeyer, Newmeyer Dillion Mr. Morris may be contacted at jason.morris@ndlf.com Mr. Schotemeyer may be contacted at dutch.schotemeyer@ndlf.com Read the court decision
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California’s Fifth Appellate District Declares the “Right to Repair Act” the Exclusive Remedy for Construction Defect Claims

September 03, 2015 — Stephen A. Sunseri – Gatzke Dillon & Balance LLP
August 26, 2015 - The Fifth Appellate District ruled SB800 (California's "Right to Repair Act" [the "Act"]) provides the sole remedy for homeowners in construction defect actions. The court found "no other cause of action is allowed to recover for repair of the defect itself or for repair of any damage caused by the defect." (McMillin Albany LLC v. Superior Court of California (Aug. 26, 2015, No. F069370) __ Cal.App.4th __ [2015 WL 5029324].) The court issued a blistering criticism of the Fourth Appellate District's prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act. In McMillin, the court reviewed whether a homeowner was required to follow the Act's prelitigation procedures even after dismissing a cause of action arising under the Act. In deciding the issue, the court quoted directly from the first line of the Act (Civ. Code § 896) and found "[i]n any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction … , the claimant's claims or causes of action shall be limited to violation of" the standards set out in the Act. The court recognized the statutory exceptions to this rule, such as for claims arising under contract, or any action for fraud, personal injuries, or statutory violations. (Civ. Code., § 943.) However, this result directly conflicts with the Fourth Appellate District's decision in Liberty Mutual, which found homeowners can circumvent the entire Act by simply alleging property damage claims. McMillin rejects Liberty Mutual's "reasoning and outcome" as being inconsistent with the express language of the Act. McMillin found that Liberty Mutual failed to fully analyze the statutory language of the Act, which (on its face) limits any action for construction deficiencies to the requirements of the Act. McMillin concludes the Legislature intended that all construction defect actions (for new residences sold on or after January 1, 2003), are subject to the requirements of the Act, including the prelitigation procedures, regardless of whether a complaint expressly alleges a cause of action under the Act or not. McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts. McMillin directly conflicts with Liberty Mutual, and because of this conflict, the issue will need to be resolved by the California Supreme Court. Until such review is granted, the conflict will remain and trial courts will likely continue to conflate the issue. Read the court decision
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Reprinted courtesy of Stephen A. Sunseri, Gatzke Dillon & Balance LLP
Mr. Sunseri may be contacted at ssunseri@gdandb.com

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ACEC Statement on Negotiated Bipartisan Debt Limit Compromise

June 05, 2023 — The American Council of Engineering Companies
Washington, D.C. – The American Council of Engineering Companies (ACEC) released the following statement applauding the negotiated bipartisan compromise to raise the debt limit ahead of the scheduled House vote tonight:

"The American Council of Engineering Companies (ACEC) applauds President Biden and Speaker McCarthy for negotiating a bipartisan compromise to raise the debt limit and avoid a catastrophic default. We are particularly pleased that the bipartisan deal protects the critical funds provided under the Infrastructure Investment and Jobs Act (IIJA) and does not include any changes to the Inflation Reduction Act's (IRA) climate and clean energy provisions, which the engineering industry is working hard to deliver successfully. ACEC also strongly supports the provisions in the deal to reform the federal permitting process. These commonsense measures to modernize the National Environmental Policy Act (NEPA), particularly through the use of digital technologies, will improve interagency collaboration and allow engineering firms to help their clients deliver project benefits more efficiently while ensuring strong environmental protections and opportunities for community and stakeholder engagement."

The American Council of Engineering Companies (ACEC) is the business association of the nation's engineering industry. Founded in 1909, ACEC is a national federation of 51 state and regional organizations representing more than 5,500 engineering firms and 600,000+ engineers, surveyors, architects, and other specialists nationwide. ACEC member firms drive the design of America's infrastructure and the built environment. Read the court decision
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FHFA’s Watt Says Debt Cuts Possible for Underwater Homeowners

February 05, 2015 — Clea Benson – Bloomberg
(Bloomberg) -- Fannie Mae and Freddie Mac’s overseer wants to allow debt cuts for a narrow group of borrowers who owe more than their homes are worth. The trick is figuring out a way to do it without incurring costs for taxpayers. Federal Housing Finance Agency Director Melvin L. Watt told reporters Wednesday that he is still studying the idea of reducing principal on properties with depressed values, a step backed by housing advocates and Democratic lawmakers. Read the court decision
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Reprinted courtesy of Clea Benson, Bloomberg

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Insurer Not Bound by Decision in Underlying Case Where No Collateral Estoppel

February 25, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The Eleventh Circuit determined that the trial court did not err by refusing to give preclusive effect to findings made in the underlying state-court action because there was no collateral estoppel. Nationwide Mut. Ins. Co. v. Sharif, 2014 U.S. App. LEXIS 2114 (11th Cir. Feb. 4, 2014). Bashir's owned a grocery and was insured by Nationwide. The decedent was accidentally killed by a pistol stored under the cash register. The decedent's personal representative sued Bashir in state court. Nationwide declined to defend because it maintained that the employment exclusion applied to bar coverage. The personal representative argued two alternative claims, the first assuming the decedent was not an employee of Bashir's and the second assuming that he was. The state court granted a motion to dismiss the second claim that the decedent was an employee. In a subsequent trial, judgment was awarded against Bashir and another defendant in the amount of $950,000. 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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