Cambridge Massachusetts Building Expert Directory

Construction Defect Lawsuits Hinted for Dublin, California

February 07, 2013 — CDJ STAFF
Without naming the community, the blog Around Dublin says that a condo community in Dublin, California may be prepping for a construction defect lawsuit. According to the article, the problems include a façade peeling away from the building, cracks in walls and granite countertops, and issues with both the HVAC systems and the plumbing. The homeowners association is said to have insufficient reserve funds to address the problems. Read the court decision
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Rhode Island Finds Pollution Exclusion Ambiguous, Orders Coverage for Home Heating Oil Leak

March 06, 2023 — Kayla S. O'Connor - Saxe Doernberger & Vita, P.C.
The Rhode Island case of Regan Heating and Air Conditioning, Inc. v. Arbella Protection Insurance Company, Inc., et. al.1 provides much-needed guidance regarding ambiguity and the term “pollution.” In Regan, the Rhode Island Supreme Court held that a pollution exclusion contained in the Plaintiff’s “Commercial Package Policy” was ambiguous as to whether home heating oil that escaped into a customer’s basement constituted a “pollutant” under the policy. This case stems from a 2015 incident wherein Regan was in the process of removing an older heating system and installing a new heating system in a customer’s home when that customer discovered 170 gallons of home heating oil in his basement. The customer sued Regan, alleging negligence and demanding remediation for the property damage caused by the oil leak. Read the court decision
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Reprinted courtesy of Kayla S. O'Connor, Saxe Doernberger & Vita, P.C.
Ms. O'Connor may be contacted at KOconnor@sdvlaw.com

No Concrete Answers on Whether Construction Defects Are Occurrences

February 14, 2013 — CDJ STAFF
Aaron Mandel and Stevi Raab of Sedgwick Law write Construction Defect Coverage Quarterly addressing the question of “whether defective construction constitutes an ‘occurrence’ (and therefore may be covered) under liability insurance policies.” They note that some courts have held that construction defects are not an occurrence but instead are the “natural consequence of performing substandard work.” Other courts conclude that while construction defects are not occurrences, “the resulting damage may be covered because it was fortuitous and unintended.” And, finally, other courts have concluded that “defective construction work itself is accidental and the inured rarely expects construction defects.” Mandel and Raab put forth that “these decisions essentially provide insured with huge, unintended and unfair windfalls – performance bonds for basically no premium.” Legislatures have also looked at this issue, passing laws that mandate that construction defects are occurrences. These are all fairly recent and the courts have yet to address these laws, and Mandel and Raab note that “it is unclear what their ultimate effect on the ‘occurrence’ issue will be.” They do not expect the laws to end litigation over whether construction defects are occurrences. Finally, they discuss what the ultimate results of these court decisions and laws will be. Insurers might write more policy exclusions, or increase premiums, or even cease insuring construction. Read the court decision
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Rattlesnake Bite Triggers Potential Liability for Walmart

February 02, 2017 — James R. Lynch - Ahlers & Cressman, PLLC
A customer shopping at Walmart’s outdoor garden center in Clarkston, Washington, reached down to brush aside a stick covering a price tag for bags of mulch stored on wooden pallets. The “stick” turned out to be a rattlesnake, and bit his hand. The customer sued Walmart on the legal basis of “premises liability,” claiming that as Walmart’s business invitee (one who enters the owner’s property primarily for the owner’s benefit), the store owed him a duty to warn or guard against hazardous conditions such as the rattlesnake. In many cases, a property owner’s duty to protect invitees applies only where the owner knows or reasonably should know of the hazardous condition. The owner’s liability therefore often hinges on where the hazard is located, how long it has been present, whether it has occurred in the past, and similar considerations. Read the court decision
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Reprinted courtesy of James R. Lynch, Ahlers & Cressman, PLLC
Mr. Lynch may be contacted at jlynch@ac-lawyers.com

Appeals Court Affirms Carrier’s Duty to Pay Costs Taxed Against Insured in Construction Defect Suit

November 03, 2016 — Jesse Howard Witt – The Witt Law Firm
One of the key reasons for builders to maintain liability insurance is to cover the cost of hiring defense counsel and paying litigation costs in the event of a construction defect lawsuit. If a builder loses a lawsuit, it will typically be responsible for paying the plaintiff’s litigation costs. Today, the Colorado Court of Appeals clarified that the “supplementary payments” section of a standard Commercial General Liability (CGL) insurance policy covers such costs, even if the carrier has reserved the right to dispute whether it has a duty to indemnify the actual damages awarded. This may seem counter-intuitive, insofar as a carrier may owe costs even if it does not cover the underlying loss, but the court’s decision is consistent with the plain language of the CGL form that most carriers use. Reprinted courtesy of Jesse Howard Witt, The Witt Law Firm Mr. Witt may be contacted at his website www.witt.law Read the full story... Read the court decision
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Triple Points to the English Court of Appeal for Clarifying the Law on LDs

July 01, 2019 — Vincent C. Zabielski & Julia Kalinina Belcher - Gravel2Gavel
Can an employer recover liquidated damages (LDs) from a contractor if the contract terminates before the contractor completes the work? Surprisingly, heretofore, English law provided no clear answer to this seemingly straightforward question, and inconsistent case law over the past century has left a trail of confusion. Given the widespread use of English law in international construction contracts, this uncertainty had gone on far too long. The good news is that drafters of construction contracts throughout the world can now have a well-deserved good night’s sleep courtesy of the English Court of Appeal’s March 2019 decision in Triple Point Technology, Inc. v PTT Public Company Ltd [2019] EWCA Civ 230. The Triple Point case concerned the delayed supply by Triple Point (the “Contractor”) of a new software system to employer PTT. The contract provided for payments upon achievement of milestones, however order forms incorporated into the contract set out the calendar dates on which fixed amounts were payable by PTT, resulting in an apparently contradictory requirements on when payment was due. Triple Point achieved completion (149 days late) of a portion of the work milestones, and were paid for that work. Triple Point then sought payment for the work which was not yet completed, relying on the calendar dates in the order forms rather than achievement of milestone payments. Things got progressively worse as PTT refused payment, Triple Point suspended the work for PTT’s failure to pay, PTT terminated the contract and then appointed a new contractor to complete the work. Reprinted courtesy of Vincent C. Zabielski, Pillsbury and Julia Kalinina Belcher, Pillsbury Mr. Zabielski may be contacted at vincent.zabielski@pillsburylaw.com Ms. Belcher may be contacted at julia.belcher@pillsburylaw.com Read the court decision
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Doctrine of Merger Not a Good Blend for Seller of Sonoma Winery Property

April 15, 2015 — Kristen Lee Price and Lawrence S. Zucker II – Haight Brown & Bonesteel LLP
In Ram’s Gate Winery, LLC v. Joseph G. Roche, et al. (No. A139189 & A141090, filed 4/9/15) (Ram’s Gate), the California Court of Appeal for the First Appellate District held the doctrine of merger did not extinguish a seller’s contractual duty to disclose potentially hazardous seismic conditions on a Sonoma winery property. In Ram’s Gate, the buyer of the property filed a lawsuit alleging the seller failed to disclose information relating to earthquake issues prior to the close of escrow. In the parties’ “Purchase and Sales Agreement” (Purchase Agreement) the seller agreed to disclose any information known to it regarding “known geological hazards . . . soil reports . . . geotechnical reports” and other facts “having effect on the value of the ownership or use of the property.” The seller, however, argued this disclosure warranty did not survive the escrow period because it did not expressly provide for survival while other provisions in the Purchase Agreement did. Reprinted courtesy of Kristen Lee Price, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Price may be contacted at kprice@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Scary Movie: Theatre Developer Axed By Court of Appeal In Prevailing Wage Determination Challenge

July 19, 2017 — Steven M. Cvitanovic & Omar Parra - Haight Brown & Bonesteel LLP
The First Appellate District of the California Court of Appeal recently held that the construction of a movie theater, which was performed in furtherance of a city’s redevelopment agenda, constitutes a “public work” within the meaning of California’s prevailing wage law. Cinema West, LLC v. Christine Baker, No. A144265, (Cal. Ct. App. June 30, 2017). Like many California cities, the City of Hesperia (the “City”) endeavored to revitalize its downtown. In furtherance of this goal, the City acquired vacant property in its downtown with the hope of turning it into a new city hall, a public library, and “complimentary retail, restaurant, and entertainment establishments.” After completing construction of the civic buildings, the City entered into discussions with Cinema West, LLC (“Cinema West”) for the construction of a “state-of-the-art cinema experience.” Under the agreement with the City, Cinema West agreed to purchase the property from the City at fair market value, obtain financing for the construction costs, and build and maintain the movie theater. The City, on the other hand, agreed to provide Cinema West with an interest-bearing loan forgivable over ten years, and to construct an adjacent parking lot “for use by Cinema West... as a parking lot for the movie theater.” The City, moreover, agreed to issue Cinema West a one-time payment as consideration for the operating covenant. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and Omar Parra, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Parra may be contacted at oparra@hbblaw.com Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES