Cambridge Massachusetts Building Expert Directory

Building Amid the COVID Challenge

November 29, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
At longtime client Clark Construction, Dave Beck took charge of risk management just weeks before the COVID-19 pandemic struck. David Beck made a big career move last year—just how big, he soon learned. In January 2020, Beck became division president for risk management at Clark Construction Group, a major national builder based in Bethesda, Md., with more than 4,000 employees across the U.S. In business since 1906, Clark has grown from a small, local excavator into one of the country’s best-known providers of construction services. Beck took up his position at Clark shortly before COVID-19 changed life for everyone. We recently reached out to him to learn how his role has evolved since then. Read the court decision
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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

IRMI Expert Commentary: Managing Insurance Coverage from Multiple Insurers

May 11, 2020 — Gregory D. Podolak, Philip B. Wilusz & Ashley McWilliams - Saxe Doernberger & Vita
What do you do when less is more? In many loss scenarios, triggering coverage under multiple policies can be a critical and effective strategy. However, doing so has the potential to complicate the insurance recovery proceedings immensely, and possibly even undermine those overall goals. The relation of "other insurance" clauses, allocation schemes, and the practical impacts of interacting with multiple insurers can all leave the insured with some difficult questions. We present here several scenarios that illustrate how these concerns can arise and how they should be addressed to avoid running into what The Notorious B.I.G.—had he been a coverage lawyer—would have called "The More Coverage We Come Across, the More Problems We See." The "Other Insurance" Issue This first scenario is where a single-year loss implicates multiple lines of coverage. Consider the following: a general contractor (GC) faces a property damage liability claim from an owner. As a prudent insured, the GC notifies its customary first line of defense, its commercial general liability (CGL) insurer, to provide a defense. As knowledge of the claim evolves, it appears an element of pollution may be involved. The GC also places its pollution insurer on notice. Later, it's determined that the GC may have a professional liability exposure, so it tenders a claim to its professional liability insurer. Now assume that each insurer accepts coverage. Reprinted courtesy of Saxe Doernberger & Vita attorneys Gregory D. Podolak, Philip B. Wilusz and Ashley McWilliams Mr. Podolak may be contacted at gdp@sdvlaw.com Mr. Wilusz may be contacted at pbw@sdvlaw.com Ms. McWilliams may be contacted at amw@sdvlaw.com Read the court decision
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Washington State Safety Officials Cite Contractor After Worker's Fatal Fall

October 09, 2023 — James Leggate - Engineering News-Record
Inspectors with the Washington State Dept. of Labor & Industries found that flipper deck platforms were not used in line with the manufacturer’s specifications on a jobsite where a worker was killed in a fall earlier this year. Officials cited a contractor, SAK Builders Inc., for $16,800 in penalties over three alleged serious violations. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Sureties and Bond Producers May Be Liable For a Contractor’s False Claims Act Violations

October 19, 2017 — Michael C. Zisa & Susan Elliott – Peckar & Abramson, P.C.
Two recent decisions from the United States District Court for the District of Columbia and the United States Court of Federal Claims highlight that sureties and bond producers are not immune to the potentially severe consequences of the False Claims Act (“FCA”) and related federal fraud statutes. In each case, the Court determined that sureties and bond producers can face potential liability under these fraud statutes for direct and indirect submission of false claims to the federal government. Reprinted courtesy of Michael C. Zisa, Peckar & Abramson, P.C. and Susan Elliott, Peckar & Abramson, P.C. Mr. Zisa may be contacted at mzicherman@pecklaw.com Ms. Elliott may be contacted at selliott@pecklaw.com Read the court decision
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Insurers Refuse Indemnification of Subcontractors in Construction Defect Suit

November 13, 2013 — CDJ STAFF
SMG Stone Co. Inc. and J. Colavin & Son Inc. were hired by Webcor Construction LP to install stone floor tiles at the Ritz-Carlton residences at the L.A. Live complex in Los Angeles. But the tiles began to crack even before installation was finished. The building management had all the tiles ripped out and replaced, although only 10% of the tiles were defective. The building management then claimed Webcor owed them $40 million, but settled for $8 million. $7 million of that claim was paid by Steadfast Insurance Co., with the remaining $1 million paid by Webcor. The two other insurers involved, American Home and The Insurance Company of the State of Pennsylvania, are attempting to deflect Webcor or Steadfast from making claims against them. Both insurers claim no obligation to indemnify the contractor or subcontractors as the claims do not involved “property damage,” as defined in the policy. Read the court decision
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The Big Three: The 9th Circuit Joins The 6th Circuit and 7th Circuit in Holding That Sanctions For Bad-Faith Litigation Tactics Can Only Be Awarded Against Individual Lawyers and Not Law Firms

September 03, 2015 — Christopher B. Lloyd & Stephen J. Squillario – Haight Brown & Bonesteel LLP
In Law v. Wells Fargo Bank, N.A. (2015 S.O.S. 13–56099 – filed August 27, 2015), the Ninth Circuit joined the shortlist of Circuit Courts to hold that sanctions for bad-faith litigation tactics under 28 U.S.C. section 1927 can only be sought against individual attorneys and not law firms. Section 1927 authorizes sanctions against “[a]ny attorney or other person admitted to conduct cases in any court of the United States … who so multiplies the proceedings in any case unreasonably and vexatiously….” On behalf of the client, an attorney with Kaass Law filed a complaint against ten different defendants, including Wells Fargo Bank, which moved to dismiss under F.R.C.P. Rule 12(b)(6). Rather than responding to the motion to dismiss, plaintiff filed a motion to amend the initial complaint; Wells Fargo Bank filed a notice of non-opposition. Reprinted courtesy of Christopher B. Lloyd, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr.Lloyd may be contacted at clloyd@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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Attorneys' Fee Clauses are Engraved Invitations to Sue

April 19, 2021 — David M. McLain – Colorado Construction Litigation
As we start another trip around the sun, hopefully you are in the process of updating your form contracts, including purchase and sale agreements and express written warranties. Because the law and litigation landscape continually changes, it is a good practice to periodically update the forms you use in order to give yourself a fighting chance if and when the plaintiffs' attorneys come knocking on your door. As you engage in this process, I hope that you will take a critical look at whether your contracts include a prevailing party attorneys' fees clause and, if so, whether you should leave it in there. In Colorado, parties are entitled to recover attorneys' fees only if provided for by statute or by contract. Historically, plaintiffs' attorneys relied on two statutes, the Colorado Consumer Protection Act and Colorado's Statutory Interest statute, to recover attorneys’ fees in construction defect cases. In 2003, the Colorado legislature capped treble damages and attorneys' fees under the Colorado Consumer Protection Act at $250,000, effectively restricting plaintiffs' attorneys from relying on the CCPA to recoup their attorneys' fees, especially in large cases. In 2008, the Colorado Supreme Court issued its decision in Goodyear v. Holmes, stating that plaintiffs can only claim prejudgment interest under Colorado's Statutory Interest statute, in cases where they have already spent money on repairs, not when they are suing for an estimate of what repairs will cost in the future. Without either the CCPA or the prejudgment interest statute to recover attorneys' fees, plaintiffs' attorneys most often now rely on the prevailing party attorney fee clause in contracts between the owner and builder, or in the declaration of covenants, conditions and restrictions in situations where a claim is prosecuted by an HOA. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

Unjust Enrichment Claims When There Is No Binding Contract

December 04, 2023 — David Adelstein - Florida Construction Legal Updates
A recent appellate opinion starts off, “This is a typical South Florida construction dispute.” (See case citation at the bottom) Let’s see, is it? No. It’s a garden variety payment dispute where the parties did NOT have a binding contract. Why? That’s for a different day (because the smart practice is ALWAYS to have a contract!) but it touches on the equitable, unjust enrichment claim. And it touches on competing unjust enrichment claims and the apportionment of those claims. In other words, can both parties be right on their unjust enrichment claims? An owner hired a general contractor for home renovations. Work started but the relationship soured and the general contractor did not complete the work. The general contractor filed a payment dispute against the owner based on unpaid invoices. It pled alternative theories of recovery against the owner: breach of contract and unjust enrichment. The owner filed a counterclaim against the general contractor for the same claims. During the non-jury trial, the general contractor presented unpaid invoices along with testimony that the invoices represented the value of services rendered. The owner presented evidence of the completion of work damages. 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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