Cambridge Massachusetts Building Expert Directory

Recent Regulatory Activity

October 25, 2021 — Anthony B. Cavender - Gravel2Gavel
Selected federal regulatory actions taken or proposed by several federal agencies, including the Environmental Protection Agency: EPA Actions. On September 15, 2021, EPA’s Water Office issued a memo rescinding a January 2021 guidance document that purported to provide the regulatory community with EPA’s understanding of the Supreme Court’s Clean Water Act ruling in the case of County of Maui v. Hawaii Wildlife Fund. That case involved a discharge of pollutants to groundwater which eventually made their way to the Pacific Ocean. Was an NPDES permit required to authorize this discharge, which was not initially made to a navigable body of water? The text of the Clean Water Act provided little guidance, and the matter has become very controversial. The Court held that if the discharge was the “functional equivalent” of a direct discharge, a permit may be required, and the Court described some factors that could influence a determination that there was the functional equivalent of a direct discharge. However, EPA has rescinded the January 2021 guidance, opining that EPA’s earlier analysis was inconsistent the Court’s opinion, and that the guidance was issued without proper deliberation within EPA or with its federal partners. Until new guidance is prepared, EPA will continue to apply “site-specific, science-based evaluations” to resolve these questions. On October 1, 2021, EPA released its “Climate Adaption Action Plan.” Briefly, EPA will take steps to ensure that its programs and policies consider current and future impacts of climate change and how the impacts disproportionately affect certain underserved or environmental justice communities. The agency’s air and water quality programs, contaminated sites activities and chemical safety and pollution prevention programs will be analyzed to determine their impact. Also on October 1, 2021, EPA released its draft FY 2022-2026 Strategic Plan to protect health and the environment. The plan, essentially an internal directive to all offices and regions, reflects a new “foundational principle”—to advance justice and equity by taking on the climate crisis and taking decisive action to advance civil rights and environmental justice. 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

No Occurrence Where Contract Provides for Delays

March 01, 2017 — Tred R. Eyerly – Insurance Law Hawaii
Applying Montana law, the federal district court found there was no coverage for a subcontractor who was sued by the contractor for breach of the subcontract. Phoenix Ins. Co. v. Ed Boland Constr., Inc., 2017 U.S. Dist. LEXIS 6654 (D. Mont. Jan 18, 2017). Northbank was the general contractor on a project to repair a bridge for the Federal Highway Administration (FHA). Ed Boland Construction, Inc. (EBC) was the subcontractor to perform drilling and pile installation. After beginning its work, EBC ran into difficulties with unforeseen conditions at the work site. The FHA informed Northbank that it had concerns over EBC's ability to complete the work. The FHA alleged that EBC had brought equipment to the work site that differed from the equipment it had represented would be used. 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

Picketing Threats

July 09, 2019 — Jerry Morales - Snell & Wilmer Under Construction
Letters from unions to owners, general contractors and other contractors informing them of the union’s dispute with one or more of the subcontractors, working at a common construction project site (or common situs), and of the union’s plans to engage in “public informational campaigns” at the site, in furtherance of the dispute, may constitute unlawful threats of secondary boycott. Unions often send letters to various employers that share a common construction project site, informing them that the union has a dispute with one or more of the subcontractors working or scheduled to work at the same site. In labor law, the employers that do not have a dispute with the union are referred to as “neutral employers,” in contrast with the employers with which the union has the dispute, referred to as “primary employers.” In the letters, the unions typically describe the reason for the labor dispute (e.g., alleged failure to pay “area standards”), request that the neutrals use their “managerial discretion” not to allow the primary employers to perform work at the project site until the dispute is resolved, and inform that the union will engage in public information campaigns against the primary employer at the common situs. The “public information campaign” is described in the union’s letter as including banner displays, distribution of handbills, picketing and other demonstration activity. Read the court decision
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Reprinted courtesy of Jerry Morales, Snell & Wilmer
Mr. Morales may be contacted at jmorales@swlaw.com

OSHA’s COVID-19 Emergency Temporary Standard Is in Flux

December 06, 2021 — Megan E. Baroni & Jonathan H. Schaefer - Construction Executive
On Friday, Nov. 5, 2021, Occupational Safety and Health Administration’s COVID-19 Vaccination and Testing Emergency Temporary Standard was issued, with most requirements set to go into effect on Dec. 5. The ETS applies to employers with a total of 100 or more employees company-wide. Employers covered by the ETS would be required to develop, implement and enforce a mandatory vaccination policy, subject to limited exemptions, or allow unvaccinated employees to test regularly and be subject to a mask policy, among other associated recordkeeping, reporting and training requirements. Almost immediately, the ETS was hit with a number of legal challenges in various courts across the country. On November 6, just a day after the ETS was issued, the U.S. Circuit Court of Appeals for the Fifth Circuit issued an order staying the implementation of the ETS until further notice. The Court’s order was not a final ruling on the validity of the ETS but has halted implementation of the ETS, at least for the time being. Other legal challenges are already in process, further complicating the issue of if and when the ETS will become effective. As of November 2021, the ETS is on hold, at least temporarily. That could change any day and the ETS could be back in effect, in whole or in part, or permanently halted. The legal challenges to the ETS are unlikely to end, or diminish, until the Supreme Court has weighed in, making for a few uncertain months ahead. Reprinted courtesy of Megan E. Baroni and Jonathan H. Schaefer, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Ms. Baroni may be contacted at mbaroni@rc.com Mr. Schaefer may be contacted at jschaefer@rc.com Read the court decision
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Real Protection for Real Estate Assets: Court Ruling Reinforces Importance of D&O Insurance

October 01, 2024 — Hunton Insurance Recovery Blog
Earlier this month, an Illinois federal district court held that a liability insurer had no duty to defend or indemnify a property management company or its owner in lawsuits that included allegations of intentional conduct. The suits accused the owner of concealing financial information from and engaging in a scheme to increase tax liability and decrease profit distributions to a minority owner. This case reinforces the importance of maintaining D&O insurance as part of a comprehensive liability insurance program to protect against potential gaps in coverage that could result from allegations of intentional or knowing acts. Background The court in Old Guard Insurance Company v. Riverway Property Management, LLC et al., No. 1:23-cv-01098 (C.D. Ill. Sep. 6, 2024) was asked to determine whether Old Guard Insurance Co. was required to defend or indemnify Riverway Property Management LLC or its owner under two commercial general liability policies in relation to state court lawsuits. The lawsuits alleged that Riverway’s owner intentionally and improperly misappropriated funds and that the property management company knowingly and substantially assisted with this wrongful scheme. Read the court decision
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Reprinted courtesy of Hunton Andrews Kurth LLP

Homebuilding Continues to Recover in San Antonio Area

December 04, 2013 — CDJ STAFF
There was a slowing in the third quarter, but home builders expect that 2013 will see more than 9,000 home starts in the San Antonio area. And even though the third quarter was slow, it was still about 3% above the same quarter in 2012. And the new homes are more expensive. Jack Inselmann, a senior vice president at MetroStudy noted that “in 2011, 40 percent of housing activity was under $175,000. And here we are two years later and 31 percent is under $175,000.” He worries that people looking for homes will go to the resale market, instead of buying a new home. Read the court decision
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New York Appellate Court Holds Insurers May Suffer Consequences of Delayed Payment of Energy Company Property and Business Interruption Claims

March 16, 2020 — Syed S. Ahmad & Geoffrey B. Fehling - Hunton Andrews Kurth
A New York appellate court recently held that renewable bio-diesel fuel manufacturer BioEnergy Development Group LLC may pursue tens of millions of dollars in damages from its insurers under two all-risk insurance policies, including amounts in excess of the policy limits, where the insurers refused to pay claims in a timely manner. BioEnergy purchased two all-risk property policies from Lloyd’s to provide coverage for its manufacturing plant in Memphis, Tennessee. A fire destroyed the Memphis plant in March 2016, eliminating BioEnergy’s production capacity and sole source of revenue. BioEnergy made claims under the policies and sought to rebuild its plant. The insurers acknowledged coverage and eventually made approximately $8 million in interim payments, but the parties disagreed over the value of the total property damage claim, which BioEnergy contended was in excess of $24 million. The disputed claim was submitted to appraisal, which resulted in the insurers agreeing to pay the full business interruption limit of $15.1 million. The insurers filed a declaratory judgment lawsuit, however, seeking to limit BioEnergy’s recovery to the policy limits of $15.1 million. BioEnergy alleged that the insurers failed to make interim payments in a timely manner after the fire and, as a result, the company suffered increased losses because it could not rebuild without the insurance proceeds. BioEnergy sought actual and consequential damages, plus attorneys’ fees, arising from the delayed payments, including payment of its business interruption losses in excess of the policy limits. Reprinted courtesy of Syed S. Ahmad, Hunton Andrews Kurth and Geoffrey B. Fehling, Hunton Andrews Kurth Mr. Ahmad may be contacted at sahmad@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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Making the Construction Dispute Resolution Process More Efficient and Less Expensive, Part 2

July 16, 2014 — Beverley BevenFlorez-CDJ STAFF
John P. Ahler, on the Ahlers & Cressman PLLC blog, has posted the second part of his two-part series on Ways to Make the Construction Dispute Resolution Process More Efficient and Less Expensive. In this post, Ahler discussed “tips on how lawyers and stakeholders can make things move quicker in arbitration.” For example, Ahler looked at the arbitration clause in the initial contract, various options for arbitration, evidence decisions, and others. Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES