CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Estoppel Certificate? Estop and Check Your Lease

May 06, 2019 — Lauren Podgorski - Snell & Wilmer Real Estate Litigation Blog
If you are leasing space in a building, there may come a time when you receive a request from your landlord to fill out and sign an estoppel certificate. Estoppel certificates are usually sent to tenants in connection with the sale or refinance of a building, and a third party may rely on the accuracy of the statements and information contained in the estoppel certificate in connection with that transaction. Estoppel certificates can range from a very simple, one-page document, to several pages. I’ve received an estoppel certificate in the mail. What do I do now? Consider the following: Check your lease. Your lease may require you to deliver the signed estoppel certificate and may even give you a timeframe within which you are required to return it. A form of estoppel certificate may also be included in your lease as an exhibit. If you’ve previously agreed to a form of estoppel certificate in your lease, check to ensure the one you have received matches the form you previously agreed to and if it doesn’t make sure to review it carefully to make sure it is acceptable. Review the estoppel certificate and confirm that all of the information is accurate. Be on the lookout for any terms or provisions that you did not agree to in your lease. If it seems like the landlord is trying to modify your lease, you likely do not need to consent to the change in this document. Cross off (or modify or delete, if you have an electronic copy) any information that is inaccurate. Fill in all blanks (if the blank is not applicable, write “N/A”), and if any exhibits are referenced in the body of the document, make sure they are actually attached. Read the court decision
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Reprinted courtesy of Lauren Podgorski, Snell & Wilmer
Ms. Podgorski may be contacted at lpodgorski@swlaw.com

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Can an Architect, Hired by an Owner, Be Sued by the General Contractor?

September 10, 2014 — Craig Martin – Construction Contractor Advisor
As is often the answer in this blog, maybe. And, it will likely depend on which state’s law is applied. Over the last few weeks, courts around the country have reached differing conclusions on whether a general contractor may sue an architect that it did not hire. Here’s the situation: The owner hires an architect to draft plans for a project. The project is then put out for bid and the owner hires a general contractor for the work. The general contractor and architect do not enter into a contract with each other. If, during construction, the general contractor finds fault with the plans, it may seek Request for Information and Change Orders, to shore up the perceived problems with the plans. Ultimately, the general contractor may sue the architect to recover damages it suffered in completing the project. 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

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Court Requires Adherence to “Good Faith and Fair Dealing” in Construction Defect Coverage

September 30, 2011 — CDJ STAFF

The California Court of Appeals has ruled in the case of Allied Framers, Inc. v. Golden Bear Insurance Company. Allied had been sued in a construction defect case and its primary insurer had become insolvent. Coverage for Allied’s defense was paid for by the California Insurance Guarantee Association through June 8, 2006. When warned that CIGA’s involvement was ending, Allied notified Golden Bear, which declined to provide coverage.

In the matters that followed, Golden Bear claimed that Allied had not exhausted its $1 million in primary insurance. Allied then showed that $1 million had already been paid out in the case. A few months thereafter, Golden Bear offered a $500,000 settlement on behalf of Allied which was rejected. Thereafter, Golden Bear hired new counsel to defend Allied. Golden Bear received, but allegedly did not pay, invoices Allied sent from their former counsel. Golden Bear finally settled the construction defect case for $2 million.

Allied’s original counsel sued Allied for payment. Golden Bear declined coverage. Allied then claimed that Golden Bear liable on several counts, arising from its failure to settle the construction defect action earlier than it did and its failure to pay Allied’s counsel. Golden Bear demurred, arguing that Allied had now exhausted is coverage with the $2 million settlement. The lower court sustained Golden Bear’s demurrer, dismissing Allied’s complaints.

The appeal court reviewed Allied’s seven complaints and sustained most of them. However, the court did reverse the trial court’s order in regard to Allied’s complaint that Golden Bear breached an implied covenant of good faith and fair dealing. The appeals court was not convinced that Golden Bear properly evaluated the settlement demand in the underlying construction defect case. The court found three other ways in which Golden Bear’s actions might show bad faith, in refusing to pay defense fees “after promising [Allied] such costs would be paid in full,” “failing to advise Allied about ‘actual or potential negative consequences of agreeing to the proposed settlement,’” and that their choice of counsel “failed to protect [Allied’s] interests in the negotiation.”

Read the court’s decision…

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Mississippi Sues Over Public Health Lab Defects

October 29, 2014 — Beverley BevenFlorez-CDJ STAFF
The state of Mississippi “is suing architects and designers of a new Public Health Lab, saying the $28 million lab wasn't up to containing deadly diseases, biohazards and chemicals,” reported The Clarion-Ledger. Dale Partners Architects, Earl Walls Associates, Eldridge and Associates, and Environmental Management Plus have been named as defendants. "The estimated damages are $3 million," attorney Dorsey Carson told The Clarion-Ledger. "This building is where they test tuberculosis, or where they would test anthrax or any other (biohazards). You don't have a choice – it has to meet rigorous standards." Charlie Alexander, a partner with Dale Partners, stated that “any allegations of design defects by his company and its team ‘are unfounded,’” reported The Clarion-Ledger. Read the court decision
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Government’s Termination of Contractor for Default for Failure-To-Make Progress

July 10, 2023 — David Adelstein - Florida Construction Legal Updates
Whenever you elect to terminate the other party for cause or for default, you need to JUSTIFY the basis of the cause or default. The reason being is that a termination for default or cause is the harshest contractual remedy. This is why the other party will typically either (i) convert the termination for default into one for convenience, or (ii) if there is no termination for convenience provision in the contract, argue the terminating party breached the contract by terminating the contract without rightful justification. The key is if you are going to terminate a party for cause of default, make sure you have memorialized the persuasive reasons for exercising the termination, and can otherwise reasonably support the justification. Do not, and I repeat, do not haphazardly exercise a termination for default and think you do not have to justify the basis for the termination. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Are We Having Fun Yet? Construction In a Post-COVID World (Law Note)

June 20, 2022 — Melissa Dewey Brumback - Construction Law in North Carolina
Remember how I said to never assume? Yeah, about that…… even when you plan for failures, mistakes, and other problems, sometimes things get so outside the realm of what you considered that it can leave your construction project spinning. Take, as a random example, a world-wide pandemic that shuts down supply chains, shuts down job sites, and limits the labor pool. Just as an example. What does construction law say about pandemics? They fall under an “Act of God” that you may have read about in your contracts, or in the contracts of the contractors working your projects. An “Act of God” is an event that is not foreseeable, and as such not something the parties could have anticipated when they drafted the contract. Acts of God generally excuse a party’s failure– for example, a contractor’s failure to complete the project on time can be excused when an “act of God” has occurred. By now, you’ve dealt with the practical fall out, one way or another. Many projects no longer made financial sense for your clients. Others may have been modified, reduced in scope, or had substitute materials put in place. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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St. Petersburg Florida’s Tallest Condo Tower Allegedly Riddled with Construction Defects

October 15, 2014 — Beverley BevenFlorez-CDJ STAFF
In a new lawsuit, the Signature Place Condominium Association claims "it is spending ‘large sums' of money to repair problems ranging from cracks in exterior walls to improper fire wall installation to excessive noise from air-conditioning and heating systems,” according to the Tampa Bay Times. The lawsuit also stated that “some of the alleged defects were hidden by building components and finishes and thus were not discovered by owners "until after the purchase and occupancy of the unit,” reported the Tampa Bay Times. The association “seeks damages in excess of $15,000, cites more than 100 other alleged construction and design defects.” Read the court decision
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Crime Policy Insurance Quotes Falsely Represented the Scope of its Coverage

July 13, 2020 — Brian J Clifford - Saxe Doernberger & Vita
An Indiana businessman found out the hard way how far his insurance company was willing to go to avoid paying a claim after it misrepresented the coverage of a crime policy it sold to him. The quote for the policy indicated that it included coverage for losses resulting from computer hacking. Despite this representation, when the policyholder’s bank accounts were hacked, the insurer denied coverage on the ground that there was no provision for hacking coverage in the policy. Fortunately, the Indiana Court of Appeals recognized the insured’s right to argue before a jury that the insurer’s quotes falsely represented the scope of its coverage. In Metal Pro Roofing, LLC v. Cincinnati Ins. Co., Richard Cornett, principal of Metal Pro Roofing, LLC and Cornett Restoration, LLC (the “LLCs”), purchased a Cincinnati Insurance Company CinciPlus Crime XC+ Policy (the “Policy”). At the time Mr. Cornett purchased this coverage, and during all subsequent renewals, Cincinnati issued insurance quotes that stated:

Cincinnati can insure your money and securities while at your premises, inside your bank and even off site in the custody of a courier. While you’ve taken precautions to protect your money and securities, you run the risk of loss from employees, robbers, burglars, computer hackers and even physical perils such as fire.

Give yourself peace of mind with Cincinnati’s crime coverage to insure the money and securities you worked so hard to earn.

Crime Expanded Coverage (XC®)Plus Endorsement $125.00.

(Emphasis added.) Read the court decision
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Reprinted courtesy of Brian J Clifford, Saxe Doernberger & Vita
Mr. Clifford may be contacted at bjc@sdvlaw.com

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