Cambridge Massachusetts Building Expert Directory

Demanding a Reduction in Retainage

April 01, 2015 — Craig Martin – Construction Contractor Advisor
One of the attendees of the Goldleaf Surety presentation asked a great question about reducing retention under the Nebraska Construction Prompt Pay Act, Nebraska Revised Statutes, 45-1201-45-1211. He wanted to know whether there was any way to reduce and recover retainage during the project. The short answer is retainage should be reduced half way through the project, but there is no right to recover retainge for work performed during the first half of the project. Retainage in Nebraska Under section 45-1204 of the Prompt Pay Act, a contractor may withhold up to 10% retainage. A contract that allows for greater retainage is not enforceable. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Traub Lieberman Partners Lisa Rolle, Erin O’Dea, and Nicole Verzillo Win Motion for Summary Judgment in Favor of Property Owner

September 30, 2024 — Lisa M. Rolle, Erin O’Dea, Nicole Verzillo - Traub Lieberman
Traub Lieberman Partners Lisa Rolle, Erin O’Dea, and Nicole Verzillo won motion for summary judgment in a premises liability matter brought before the Supreme Court of the State of New York, Westchester County. The Plaintiff allegedly tripped and fell in a pothole on the common driveway of five abutting properties and sustained an injury. The firm represented one of the multiple property owners. Traub Lieberman moved for summary judgment, asserting that the claims against the firm’s client should be dismissed as they did not own, operate, control or make special use of the driveway where the incident occurred. The firm also asserted that the alleged condition of the driveway that allegedly caused Plaintiff’s accident was a non-actionable, trivial defect. The firm also moved to dismiss the cross-claims asserted against them, contending that there was no evidence of negligence on behalf of the firm’s client. As such, the court found that the defect was a non-actionable, trivial defect. The firm secured dismissal of Plaintiff’s claims against the firm’s clients and against all moving and non-moving Defendants. Reprinted courtesy of Lisa M. Rolle, Traub Lieberman, Erin O’Dea, Traub Lieberman and Nicole Verzillo, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Ms. O'Dea may be contacted at eodea@tlsslaw.com Ms. Verzillo may be contacted at nverzillo@tlsslaw.com Read the court decision
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Obtaining Temporary Injunction to Enforce Non-Compete Agreement

June 09, 2016 — David Adelstein – Florida Construction Legal Updates
When a party breaches a non-compete agreement (with a non-solicitation clause), the non-breaching party typically moves for a temporary injunction. The breaching party is the party that signed the non-compete agreement, such as a former employee or consultant that agreed not to solicit its employer’s customer lists or referral sources upon leaving. The non-breaching party or the party moving for the temporary injunction is the party that is looking to protect its trade secret customer lists or referral sources, such as the employer. Read the court decision
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Reprinted courtesy of David M. Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

BOO! Running From Chainsaw Wielding Actor then Falling is an Inherent Risk of a Haunted Attraction

December 10, 2015 — Laura C. Williams, R. Bryan Martin & Lawrence S. Zuckerman – Haight Brown & Bonesteel LLP
In Griffin v. The Haunted Hotel, Inc. (filed 10/23/15; certified for publication 11/20/15), the California Court of Appeal, Fourth Appellate District, affirmed summary judgment in favor of the defendant haunted attraction operator holding that the risk of a patron being frightened, then running away and falling is inherent in the fundamental nature of a haunted house attraction. The Court further determined there was no evidence the operator acted recklessly or unreasonably increased such risks beyond those inherent in the attraction. In October 2011, Plaintiff attended The Haunted Trail attraction, which featured actors in costumes jumping out holding prop weapons to scare patrons walking along a trail through Balboa Park. The Haunted Trail also employed a scare tactic known as the “Carrie” effect, in which the patrons walk through a fake exit and suddenly a chainsaw wielding actor appears and charges at the patrons for one final jolting scare. It was during this final scene of The Haunted Trail’s “Carrie” effect that Griffin became frightened by an actor brandishing a chainsaw causing him to suddenly run away in fear. As he was fleeing, Griffin fell and injured his wrist. Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Laura C. Williams, R. Bryan Martin and Lawrence S. Zuckerman Ms. Williams may be contacted at lwilliams@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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"Ordinance or Law" Provision Mandates Coverage for Roof Repair

May 16, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The Tennessee Court of Appeals found that the insured was entitled to coverage under the policy's "ordinance or law" provision for repairs to prevent a future collapse of both the damaged and undamaged portions of the building. Jefferson Cnty. Schools v. Tenn. Risk Mgmt. Trust, 2018 Tenn. app. LEXIS 138 (Tenn. Ct. App. March 15, 2018). A major rainstorm caused a portion of Building 8, an aging vocation building at a high school, to collapse. Building 8 was covered through Tennessee Risk Management up to $100,000. Excess claims were covered by Travelers Indemnity Company. The policy included an "ordinance or law" provision providing for coverage of expenses "caused by the enforcement of any ordinance or law." Further, the insurer agreed to pay for the loss to any undamaged portions of a building caused by the enforcement of any ordinance or law that required the construction or repair of buildings. 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

Suit Against Broker for Securing Inadequate Coverage Dismissed on Statute of Limitations Grounds

April 11, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The insured's suit against his broker for securing a policy with insufficient policy limits was dismissed when filed more than two years after the alleged professional negligence occurred. Pritchard v. Andy Houghton Ins. Agency, 2018 Cal. App. Unpub. LEXIS 1160 (Cal. Ct. App. Feb. 20, 2018). Pritchard requested coverage for replacement of his property in the event of a total loss by fire. He obtained a policy from Houghton. 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

Texas Law Bars Coverage under Homeowner’s Policy for Mold Damage

July 13, 2011 — Tred R. Eyerly - Insurance Law Hawaii

Although the insurer paid for some of the mold damage at the insured’s home, the Fifth Circuit eventually determined the homeowner’s policy did not cover such damage. Rooters v. State Farm Lloyds, 2011 U.S. App. LEXIS 12306 (5th Cir. June 15, 2011).

The policy excluded loss caused by hail to personal property unless the direct force of wind or hail made an opening in the roof allowing rain to enter. Further, the policy excluded loss caused by mold or other fungi.

In 1999, hail and rain caused water damage to the roof and interior of the residence. State Farm paid $19,000 to repair the roof. Another $1,800 was paid for repairs to the interior of the building. In 2002, the insured noticed black mold. State Farm issued an additional check for $4,402 for mold abatement.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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The (Jurisdictional) Rebranding of The CDA’s Sum Certain Requirement

April 15, 2024 — Jordan A. Hutcheson and Stephanie Rolfsness - Watt Tieder
The Contract Disputes Act (the “CDA”), 41 U.S.C.A. §§ 7101 et seq., which has provided the statutory framework for resolution of most contract disputes between the federal government and its contractors since 1978, has recently been the subject of changes in judicial interpretation, despite no corresponding statutory changes. The CDA’s implementing provisions in the Federal Acquisition Regulations (FAR), require that contractors submit a claim to the government in the form of written demand to a contracting officer requesting a final decision and seeking the payment of money in a sum certain prior to pursuing resolution via board or court. However, with respect to the sum certain requirement, the United States Court of Appeals for the Federal Circuit issued an opinion in late 2023 determining that this requirement “should not be given the jurisdictional brand” as it has categorically received in the past. Rather, the court concluded that the sum certain requirement is merely an element of a claim for relief under the CDA that a contractor must satisfy to recover. This rebranding does not debase the sum certain requirement, but it does indicate a renewed focus on what constitutes “jurisdictional” in government contracts litigation. Reprinted courtesy of Jordan A. Hutcheson, Watt Tieder and Stephanie Rolfsness, Watt Tieder Ms. Hutcheson may be contacted at jhutcheson@watttieder.com Ms. Rolfsness may be contacted at srolfsness@watttieder.com Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES