Cambridge Massachusetts Building Expert Directory

Five "Boilerplate" Terms to Negotiate in Your Next Subcontract

November 08, 2017 — James R. Lynch - Ahlers & Cressman PLLC
Whether you negotiate your own subcontracts or rely on your lawyer to do the heavy lifting at contract time, a savvy subcontractor should understand the basic purpose of common subcontract provisions, and be prepared to negotiate for fair and commercially reasonable terms. While most sophisticated subcontractors are skilled at negotiating the core terms of a subcontract—scope of work, price, and time—a few simple but less obvious tweaks to common subcontract terms and conditions can go a long way to protect a subcontractor from unfair results when a dispute arises. From the desk of an experienced construction lawyer, below are the first three of the top five “boilerplate” provisions that subcontractors too often overlook during contract negotiations, along with tips on language to include and to avoid. Read the court decision
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Reprinted courtesy of James R. Lynch, Ahlers & Cressman PLLC
Mr. Lynch may be contacted at jlynch@ac-lawyers.com

Facing Manslaughter Charges In Worker's 2021 Trench Collapse Death, Colorado Contractor Who Willfully Ignored Federal Law Surrenders To Police

February 06, 2023 — U.S. Department of Labor
BRECKENRIDGE, CO – The owner of a Vail construction company facing felony manslaughter charges has surrendered to local law enforcement after the Summit County Sheriff's Office in Breckenridge, Colorado, issued an arrest warrant on Jan. 24, 2023, related to the findings of a federal safety investigation into a deadly trench collapse in November 2021. In May 2022, the U.S. Department of Labor's Occupational Safety and Health Administration cited Peter Dillon, owner of the now-defunct A4S LLC, after a worker installing residential sewer pipes suffered fatal injuries when the trench around him caved in. The collapse resulted from deteriorating conditions at the project, which A4S LLC could have prevented by using legally required trench protection systems. OSHA issued three willful citations to A4S LLC for not ensuring the excavation was inspected by a competent person, failing to instruct employees on the recognition and avoidance of unsafe conditions and not having a trench protective system in place. Investigators also issued an additional serious citation for not having a safe means of egress within 25 lateral feet of employees working in a trench. The agency proposed penalties of $449,583 and placed the company in OSHA's Severe Violator Enforcement Program. The department referred the case to the 5th Judicial District Attorney's office recommending criminal charges for A4S LLC's refusal to require safety protection, despite worsening trench conditions that included at least one trench collapse. A4S LLC has since shuttered and Dillon agreed to forfeit any future ownership, leadership or management position that involves trenching or excavation, or the oversight of workplace safety and health. Read the court decision
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It Pays to Review the ‘Review the Contract Documents’ Clause Before You Sign the Contract

March 11, 2024 — Alan Winkler - ConsensusDocs
It is fairly common for a construction contract to include a provision requiring the contractor to perform some level of review of the plans and specifications and perhaps other contract documents as part of their responsibilities. Typically, this provision is found in a section of the contract on the contractor’s responsibilities, although it can be anywhere. Owners and contractors are, with reason, focused on three main issues in reviewing contracts: (1) price, costs, and payments, (2) time and scheduling, and (3) scope of the work. Eyes may glaze over the contractor’s responsibilities section. Not only does it seem to be boilerplate, but industry professionals know what a contractor is supposed to do; in a nutshell, build the project. An old school type of contractor may regard this role as strictly following the plans and specifications, no matter what they provide. That could lead to a situation where construction comes to a complete stop because, for example, two elements are totally incompatible with each other. If that happens, the contractor would then turn to the owner and architect to ask for a corrective plan and instructions on how to proceed. That may also be accompanied by a request for more time and money while the problem is resolved. The ‘review the contract documents’ clause is designed to avoid this. It is intended to address an understanding that everyone makes mistakes, even architects and engineers whose job it is to design a buildable, functional project. The clause also addresses the understanding that a contractor is more than a rote implementer of plans and specifications because its expertise in building necessarily means the contractor has expertise in understanding the documents that define the construction and how things are put together. Read the court decision
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Reprinted courtesy of Alan Winkler, Peckar & Abramson, P.C.
Mr. Winkler may be contacted at awinkler@pecklaw.com

Hunton Insurance Practice, Attorneys Recognized in 2024 Edition of The Legal 500 United States

July 02, 2024 — Hunton Andrews Kurth LLP
Hunton Andrews Kurth LLP’s insurance coverage practice was once again recognized among the top policyholder insurance practices nationally, receiving a Band 2 national ranking in the 2024 United States Edition of The Legal 500 for Insurance: Advice to Policyholders. The Legal 500 ranks the nation’s top law firms, practices, and lawyers, highlighting those that consistently provide “the most cutting edge and innovative advice to corporate counsel … based on feedback from 300,000 clients worldwide, submissions from law firms and interviews with leading private practice lawyers, and a team of researchers who have unrivalled experience in the legal market.” Bolstering the team’s national recognition, several of the team’s lawyers received individual accolades: partner Lorelie (Lorie) Masters was named to The Legal 500’s Hall of Fame; team head Syed Ahmad was named a Leading Lawyer; partner Andrea DeField was named a Next Generation Partner; and counsel Latosha Ellis was named a Rising Star. In addition, partners Walter Andrews, Michael Levine, and Geoffrey Fehling were recognized as key lawyers on the team. Read the court decision
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Reprinted courtesy of Hunton Andrews Kurth LLP

United States Supreme Court Backtracks on Recent Trajectory Away from Assertions of General Jurisdiction in Mallory v. Norfolk Southern

August 01, 2023 — Charles S. Anderson - Lewis Brisbois
Washington, D.C. (June 28, 2023) – On June 27, 2023, the U.S. Supreme Court issued a sharply divided opinion that appears to backtrack on the Court’s steady trajectory away from assertions of general jurisdiction in recent years, e.g. Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011), Daimler AG v. Bauman, 134 S. Ct. 746 (2014), BNSF Railway Co. v. Tyrrell, 2017, 137 S. Ct. 1549 (2017). Relying on a case from 1917, Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U. S. 93 (1917), Justice Gorsuch, writing on behalf of the plurality, (Justices Gorsuch, Thomas, Sotomayor, and Jackson) (Justice Alito concurring) found that Norfolk Southern “consented” to jurisdiction in Mallory via 42 Pa. Cons. Stat. §5301(a)(2)(i),(b) by registering to do business in Pennsylvania. This statute, 42 Pa. Cons. Stat. §5301, specifically permits jurisdiction over a corporation “incorporat[ed] under or qualifi[ed]as a foreign corporation under the laws of this Commonwealth … for any cause of action that may asserted against him, whether or not arising from acts enumerated in this section.” In Pennsylvania Fire, the U.S. Supreme Court addressed the Due Process Clause of the U.S. Constitution in connection with a Missouri law that required an out-of-state insurance company desiring to transact any business in the state to file paperwork agreeing to (1) appoint a state official to serve as the company’s agent for service of process and (2) accept service on that official as valid in any suit. After more than a decade of complying with the law, Pennsylvania Fire was served with process and argued that the Missouri law violated due process. The Court unanimously found that there was “no doubt” that Pennsylvania Fire could be sued in Missouri because it had agreed to accept service of process in Missouri on any suit as a condition of doing business there. Read the court decision
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Reprinted courtesy of Charles S. Anderson, Lewis Brisbois
Mr. Anderson may be contacted at Charles.Anderson@lewisbrisbois.com

North Carolina Learns More Lessons From Latest Storm

October 16, 2018 — Pam Radtke Russell - Engineering News-Record
There’s no big wall planned to protect North Carolina’s coast from storm surge. There’s no massive tunnel system proposed to keep floodwaters away from populated areas. There are no grant-funded resilience competitions to help the state plan to manage water more effectively. Read the court decision
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Reprinted courtesy of Pam Radtke Russell, ENR
Ms. Russell may be contacted at Russellp@bnpmedia.com

Damage to Plaintiffs' Home Caused By Unmoored Boats Survives Surface Water Exclusion

April 06, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The magistrate's recommended decision found that damage to plaintiffs' home caused by boats that became loose during Hurricane Sandy was not barred as "water borne material" under the surface water exclusion. Spindler v. Great N. Ins. Co., 2016 U.S. Dist. LEXIS 16532 (E.D. N. Y. Feb. 2, 2016). Plaintiffs' home abutted the East Bay. The property had an exterior deck and a long dock that floated on the bay. Hurricane Sandy damaged plaintiffs' home and dock. A neighbor witnessed two boats, driven by the storm, repeatedly strike plaintiffs' dock, house, and deck. There was no dispute that water infiltrated plaintiffs' yard prior to the entry of the boats. Plaintiffs spent $286,280 to repair damaged items from the storm. 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

Colorado SB 15-177 UPDATE: Senate Business, Labor, & Technology Committee Refers Construction Defect Reform Bill to Full Senate

April 01, 2015 — Derek J. Lindenschmidt – Higgins, Hopkins, McLain & Roswell, LLC
On March 18th, following a lengthy hearing with testimony and questioning for and against Senate Bill 15-177, the Senate Business, Labor & Technology Committee voted 6 to 2 to refer the bill, with new amendments, to the full Senate. While the main points of the bill remain strongly intact (check here for Senate Bill 177’s particulars), bill sponsors Senators Scheffler and Ulibarri offered four amendments, designed to bring additional compromise and clarity to the bill. The committee ultimately adopted these amendments, described below. Amendment 16 removed a prior prohibition in the bill that would have prevented attorneys from assisting in the preparation of the notice required to be provided to all homeowners before the commencement of a construction defect claim. Amendment 19 complemented 16 by providing further clarification regarding the contents and specificities required in said notice, including a disclosure of projected attorneys’ fees, costs, duration, and financial impact of pursuing construction defect claims. Amendment 17 permitted homeowners to approve the pursuit of construction defect claims through written consent. Lastly, Amendment 18 provided clarification regarding the bill’s requirement that mediators and arbitrators be selected and approved through mutual agreement of the parties. Read the court decision
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Reprinted courtesy of Derek J. Lindenschmidt, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Lindenschmidt may be contacted at lindenschmidt@hhmrlaw.com

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