Cambridge Massachusetts Building Expert Directory

Partner Jason Taylor and Senior Associate Danielle Kegley Successful in Appeal of Summary Disposition on Priority of Coverage Dispute in the Michigan Court of Appeals

December 11, 2023 — Jason Taylor & Danielle K. Kegley - Traub Lieberman
In this appeal brought before the Michigan Court of Appeals, the appellate court ruled in favor of Traub Lieberman’s insurance carrier client (the “Carrier” or “Client”), affirming an award of summary disposition in favor of the Carrier in a coverage lawsuit. The coverage lawsuit involved a priority dispute between the Carrier and another insurer over which company’s policy had responsibility to cover the defense of their mutual insured, a heating and cooling contractor (the “Insured”) in an underlying lawsuit alleging carbon monoxide poisoning. The Carrier issued a contractor’s pollution liability policy and the other insurer issued a commercial general liability policy to the Insurer. Both the Carrier and the other insurer filed cross-motions for summary disposition in the trial court on the priority of coverage issue. The trial court granted the Client’s motion, holding that the CGL carrier was the primary insurer based on the language in the policies’ “other insurance” clauses. The trial court rejected the CGL carrier’s argument to apply the “total policy insuring intent” or “closest to the risk” tests—tests which Michigan courts have not adopted. Specifically, the court rejected the CGL carrier’s argument that the Client’s contractor’s pollution liability policy was more specifically tailored to the loss in the underlying lawsuit. The trial court also rejected CGL carrier’s alternative argument that the “other insurance” clauses in the policies were irreconcilable, requiring a pro rata allocation based on the respective limits of the policies. Reprinted courtesy of Jason Taylor, Traub Lieberman and Danielle K. Kegley, Traub Lieberman Mr. Taylor may be contacted at jtaylor@tlsslaw.com Ms. Kegley may be contacted at dkegley@tlsslaw.com Read the court decision
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Waiving Consequential Damages—What Could Go Wrong?

March 19, 2024 — Curtis W. Martin & Kellie M. Ros - Peckar & Abramson, P.C.
You are inexcusably late with construction of a football stadium, a casino, or similar project that generates large income for the owner. The indirect damages, often referred to as consequential damages, that flow from the delay can be astronomical to the point of breaking your company if it must pay them. As a result, many construction contracts, at every tier, contain a provision that waives consequential damages. By this waiver, a party seeks to limit its risk for these damages. Over the years, courts have interpreted these provisions in a widely variable and inconsistent manner. The courts typically start with the specific language of the waiver to discern the parties’ intent. Thus, the language of the provision itself is critical. But construction professionals should not overlook other provisions in the contract that may have an impact on a court’s analysis of the parties’ intent. As one of my colleagues likes to say, “the large print giveth and the small print taketh away.” Reprinted courtesy of Curtis W. Martin, Peckar & Abramson, P.C. and Kellie M. Ros, Peckar & Abramson, P.C. Mr. Martin may be contacted at cmartin@pecklaw.com Ms. Ros may be contacted at kros@pecklaw.com Read the court decision
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Ninth Circuit Court Weighs In On Insurance Coverage For COVID-19 Business Interruption Losses

October 11, 2021 — Rondi J. Walsh - Newmeyer Dillion
On October 1, 2021, the Ninth Circuit Court of Appeals ruled on a trio of cases involving COVID-19 business interruption losses, in a series of written opinions with results favoring the insurers. Despite the slate of wins for insurers in this round of cases, these rulings are limited to cases where policyholders either did not allege the presence of COVID-19 on their premises causing “physical alteration” of the property itself, or had a virus exclusion in their policy, or both. This leaves room for future cases potentially ruling in favor of coverage where the insureds allege the presence of coronavirus on the premises, and that there was a detrimental physical alteration of the property as a result. To date, the Ninth Circuit has not ruled on such a situation. RULING 1: Mudpie v. Travelers Casualty Insurance Co. of America The Ninth Circuit first considered a proposed class action brought by a children’s store operator, Mudpie. Mudpie sought business income and extra expense coverage from Travelers after California and local authorities issued shutdown orders impacting Mudpie’s operations due to COVID-19. (Mudpie, Inc. v. Travelers Casualty Insurance Company of America, Case No. 20-16858, --- F.4th --- (9th Cir. Oct. 1, 2021).) Travelers denied coverage, asserting that the claim did not involve “direct physical loss of or damage to” property “caused by or resulting from a covered Cause of Loss.” Travelers also denied coverage under language excluding “loss or damage caused by or resulting from any virus…that induces…physical distress, illness or disease.” Applying California law, the trial court agreed with Travelers on both accounts. Read the court decision
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Reprinted courtesy of Rondi J. Walsh, Newmeyer Dillion
Ms. Walsh may be contacted at rondi.walsh@ndlf.com

Florida trigger

May 18, 2011 — CDCoverage.com

In Johnson-Graham-Malone, Inc. v. Austwood Enterprises, Inc., No. 16-2009-CA-005750-XXXX-MA (Fla. 4th Cir. Ct. Duval County, April 29, 2011), insured JGM was the general contractor for an apartment project completed in 1998. In 2007, the project owner sued JGM seeking damages for defective construction resulting in moisture penetration property damage. JGM tendered its defense to Amerisure. Amerisure denied a defense. JGM defended and settled the underlying suit and then filed suit against Amerisure seeking recovery of defense and settlement costs. The trial court granted JGMâ€™s motion for partial summary judgment. The court first addressed Amerisureâ€™s duty to defend. Applying Florida law, the court held that, although the underlying complaint alleged that the property damage was not discovered until after expiration of the Amerisure policies

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Reprinted courtesy of CDCoverage.com

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Legal Implications of 3D Printing in Construction Loom

July 10, 2018 — Aldo E. Ibarra - Engineering News-Record
Imagine a printer in the middle of a construction site programmed with a designer’s plans and specifications to build an entire home from scratch. As concrete is fed into the printing device, a technician hits enter on her computer and a 3D printer starts fabricating the structure’s walls and roof. Read the court decision
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Reprinted courtesy of Aldo E. Ibarra, ENR
ENR staff may be contacted at ENR.com@bnpmedia.com

The Legal 500 U.S. 2024 Guide Names Peckar & Abramson a Top Tier Firm in Construction Law and Recognizes Nine Attorneys

July 15, 2024 — Peckar & Abramson, P.C.
Peckar & Abramson, P.C. (P&A) is pleased to announce The Legal 500 United States has once again ranked P&A as a Tier One firm in construction law. The publication also recognized nine P&A construction lawyers in its directory for their contributions in the United States:

Levi W. Barrett – Recommended Lawyers
Michael A. Branca – Leading Lawyers
Steven M. Charney – Recommended Lawyers
Gregory H. Chertoff – Recommended Lawyers
Adam P. Handfinger – Next Generation Partners
Timothy D. Matheny – Key Lawyers
Paul Monte – Leading Lawyers
Gerard J. Onorata – Key Lawyers
Robert S. Peckar – Hall of Fame

P&A is proud to be recognized each year by several legal ratings services, including our Tier 1 ratings by Chambers both nationally and in a number of jurisdictions around the country. Steven M. Charney commented, “Receiving this prestigious recognition by Legal 500 signifies the exceptional caliber of our team, their unwavering commitment to delivering unparalleled legal solutions, and their ability to navigate complex challenges. We are dedicated to providing our clients with the highest level of service and are proud to be recognized as leaders in the field of construction law.” Read the court decision
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Reprinted courtesy of Peckar & Abramson, P.C.

How to Build a Water-Smart City

August 23, 2021 — Chris Malloy - Bloomberg
Cities across time have stretched to secure water. The Romans built aqueducts, the Mayans constructed underground storage chambers, and Hohokam farmers dug more than 500 miles of canals in what is now the U.S. Southwest. Today’s cities use portfolios of technologies to conserve supply — everything from 60-story dams and chemicals to centrifugal pumps and special toilets. And yet, the cities of tomorrow will have to do more. A recent United Nations report on drought says climate change is increasing the frequency, severity and duration of droughts, which contribute to food insecurity, poverty and inequality. The report also asserts that “drought has been the single longest-term physical trigger of political change in 5,000 years of recorded human history.” It calls for urgent action and a transformation in governance to manage modern drought risk more effectively. Read the court decision
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Reprinted courtesy of Chris Malloy, Bloomberg

Why Employees Are Taking Ownership of Their Architecture Firms

January 22, 2024 — Kriston Capps - Bloomberg
The architecture firm BNIM has always been a leader on sustainable design. In the late 1980s, principal emeritus Bob Berkebile was one of the first architects to push the industry to take the idea of green buildings seriously. Then-President Bill Clinton even recruited him to lead a climate-minded restoration of the White House. Berkebile and his Kansas City, Missouri–based firm — he’s the “B” in BNIM, alongside Tom Nelson, David Immenschuh and Steve McDowell — received top honors from the American Institute of Architects in 2011, among many other accolades. Now the firm behind such projects as the US Embassy expansion in Kampala, Uganda, and a proposed South Loop park to deck over a highway in downtown Kansas City hopes to stand out in another way. In October, BNIM announced its transition to an employee stock ownership plan, or ESOP. The firm is one of a handful in the industry to recently embrace the employee-ownership model, following similar moves in 2021 by SHoP Architects and Zaha Hadid Architects. Read the court decision
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Reprinted courtesy of Kriston Capps, Bloomberg

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