Cambridge Massachusetts Building Expert Directory

Governor Signs AB5 Into Law — Reshaping California's Independent Contractor Classification Landscape

December 02, 2019 — Eric C. Sohlgren & Matthew C. Lewis - Payne & Fears Legal Alert
Today, Governor Gavin Newsom signed California Assembly Bill 5 (“AB5”), controversial legislation which will have a substantial impact on California employers when it goes into effect on January 1, 2020. AB5 enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor. Under the ABC test established in Dynamex and now under AB5, a worker may be properly considered an independent contractor only if the hiring entity establishes all three of the following: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Reprinted courtesy of Eric C. Sohlgren, Payne & Fears and Matthew C. Lewis, Payne & Fears Mr. Sohlgren may be contacted at ecs@paynefears.com Mr. Lewis may be contacted at mcl@paynefears.com Read the court decision
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Fraud Claims and Breach Of Warranty Claims Against Manufacturer

March 04, 2024 — David Adelstein - Florida Construction Legal Updates
A recent case touches upon two issues that are noteworthy when considering fraud claims and breach of warranty claims against a manufacturer. Below contains a discussion on these claims. Independent Tort Doctrine “Florida’s independent tort doctrine provides that a party may not recover in tort for a contract dispute unless the tort is independent of any breach of contract.” MidAmerica C2L Inc. v. Siemens Energy, Inc., 2024 WL 414620, *6 (M.D.Fla. 2024). This means tort allegations and claims MUST be separate and distinct from performance under the contract. Id. (citation omitted). In MidAmerica C2L, a plaintiff sued a manufacturer relating to sophisticated equipment for a coal gasification plant. The parties entered into different agreements for the equipment and a license where the plaintiff could use the manufacturer’s patented technology for its coal gasification plants. A dispute arose and the plaintiff sued the manufacturer under various legal theories. The manufacturer moved for summary judgment. 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

City Drops Impact Fees to Encourage Commercial Development

November 08, 2013 — CDJ STAFF
The Orvido, Florida city council wants to encourage commercial development, and they’re willing to do it by discouraging residential development. The impact fees for commercial buildings have dropped sharply, the Orlando Sentinel notes that for a 50,000 square-foot office building, the city is reducing the impact fee from $2,890 to $1,575, a drop of $1,313, nearly half. Meanwhile, the impact fee for single-family homes has seen an increase of seven percent, going from $3,195 to $3.433. The city is clear about its reasons. “We’re very heavy on the residential side. We want to have more high-paying jobs come into the city,” said Keith Britton, a member of the council. Read the court decision
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US Homes Face Costly Retrofits for Induction Stoves, EV Chargers

May 20, 2024 — Kendra Pierre-Louis - Bloomberg
Buyers of new homes in the US may find themselves saddled with electrical systems better suited to the 20th century than the 21st. The International Code Council, which sets model construction standards for new homes, was expected to include building electrification measures in its 2024 energy code on March 20. But following appeals lodged by industry groups, the ICC board moved the measures to the code’s appendices, effectively making them optional, as first reported by the Huffington Post. If new homes aren’t wired for increasing power needs from electric appliances and car chargers, it will bump the effort and cost of making such upgrades onto homeowners — a deterrent to going electric. Energy efficiency advocates say this could slow the pace of the energy transition, costing both jobs and the planet. Read the court decision
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Reprinted courtesy of Kendra Pierre-Louis, Bloomberg

North Dakota Court Determines Inadvertent Faulty Workmanship is an "Occurrence"

May 10, 2013 — Tred Eyerly
Joining what it called the majority of jurisdictions, the North Dakota Supreme Court found that damage caused by faulty workmanship can be an "occurrence." K&L Homes, Inc. v. Am. Family Mutual Ins. Co., 2013 N.D. LEXIS 61 (N.D. April 5, 2013). The insured, K&L, was a general contractor who was sued after completing construction of a new home. The suit was based upon breach of contract and breach of implied warranties claims. The homeowners alleged that improper compacting of soil had caused shifting of their home, leading to property damage. K&L had hired a subcontractor to do the soil compaction work. The insurer denied coverage. K&L sued the insurer, but lost at the summary judgment stage. On appeal, K&L argued the policy should be interpreted to give effect to the document as a whole and the "subcontractor exception" to the "your work" exclusion should apply. Read the court decision
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Reprinted courtesy of Tred Eyerly
Mr. Eyerly can be contacted at te@hawaiilawyer.com

California Supreme Court Rejects Third Exception to Privette Doctrine

July 03, 2022 — Lewis Brisbois
Walnut Creek, Calif. (May 25, 2022) - In Gonzalez v. Mathis (August 19, 2021) 12 Cal. 5th 29, the California Supreme Court considered whether to create a third exception to the Privette Doctrine specific to known hazards on a worksite, when a contractor cannot remedy the hazard by taking reasonable safety precautions to protect against it. Privette Background Under the Privette Doctrine, the hirer of an independent contractor generally cannot be liable for injuries sustained by the independent contractor or its employees while on the job. This is due to the “strong presumption” that the hirer delegates all responsibility for workplace safety to the independent contractor. See Privette v. Superior Court (1993) 5 Cal. 4th 689. Since the Privette ruling in 1993, the California Supreme Court has identified two circumstances in which the presumption may be overcome. First, the hirer may be liable when it retains control over any part of the independent contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury. Hooker v. Dept. of Transportation (2002) 27 Cal. 4th 198, 213. Second, a landowner who hires an independent contractor may be liable if the landowner knew, or should have known, of a concealed hazard to the property that the contractor did not know of and could not have reasonably discovered, and the landowner failed to warn the contractor of the hazard. Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, 664. Here, in the Gonzalez case, the court considered whether a landowner could be liable for known hazards on the property. Read the court decision
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Reprinted courtesy of Lewis Brisbois

Amendments to California Insurance Code to Require Enhanced Claims Handling Requirements for Claims Arising Out Of Catastrophic Events

September 04, 2019 — Jon A. Turigliatto, Esq. & Ravi R. Mehta, Esq. – Chapman Glucksman Dean Roeb & Barger Bulletin
Senator Bill Dodd, who represents Napa County and surrounding areas in the California Senate, has recently introduced Senate Bill 240, known colloquially as The Insurance Adjuster Act of 2019. S.B. 240 would amend the California Insurance Code to streamline and organize claim processing, particularly during a state of emergency / catastrophic events. The proposal is in response to a series of devastating wildfires which ravaged the Sonoma County and Napa Valley wine country during the 2017 fire season (Atlas, Tubbs, and Nun fires). Many of Senator Dodd’s constituents reported difficulty in navigating the claim process due to multiple claim professionals handling a single claim, many of whom were outside of California, and many of whose capabilities were challenged. S.B. 240 would direct the Department of Insurance to issue annual notices setting forth legal developments as they relate to property insurance policies, including best practices for evaluating damage caused by an emergency, and requires out-of-state claims professionals to certify, under penalty of perjury, that they have read these notices along with claim adjusting literature also prepared by the Department of Insurance. S.B. 240 would also require insurers to designate a primary point of contact for their customers during a state of emergency until the claim is closed or litigation is initiated. While the proposed legislation would not prohibit multiple claims professionals handling a single claim, it would provide for training standards issued by the Department of Insurance on how best to handle claims in a state of emergency. Further, S.B. 240 would require claims professionals who are not licensed in California (1) to be supervised by a licensed California claims professional, and (2) to read and understand the annual emergency claim adjusting literature issued by the Department of Insurance within 15 calendar days of beginning adjusting of claims in California. The bill passed the Senate by unanimous vote and is pending in the Assembly. The bill is also supported by Insurance Commissioner Ricardo Lara. Accordingly, the bill is expected to pass the Legislature. Once enacted, S.B. 240 would significantly elevate claim adjusting requirements related to emergencies, such as natural disasters, by placing greater oversight in the Department of Insurance, and greater responsibility on claims professional within and outside of California. How pragmatic these requirements are and what practical impact they will have on the industry are developments which we will follow and provide further commentary as this bill makes its way through the California legislature and into the California Insurance Code. Reprinted courtesy of Jon A.Turigliatto, Chapman Glucksman Dean Roeb & Barger and Ravi R. Mehta, Chapman Glucksman Dean Roeb & Barger Mr. A.Turigliatto may be contacted at jturigliatto@cgdrblaw.com Mr. Mehta may be contacted at rmehta@cgdrblaw.com Read the court decision
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When is a Contract not a Contract?

January 21, 2019 — Christopher G. Hill - Construction Law Musings
As I’ve stated numerous times here at Musings, in Virginia the contract is king. The courts of Virginia will read a contract as written and where there is a contract (read as foreshadowing), the courts will assume the parties knew what they were doing and enforce it by its terms. However, there has to be a contract in the first place. When can something look like a contract but still not be a contract? When there isn’t mutual assent according to the case of Knox Energy, LLC v. Gasco Drilling, Inc. In the Knox case, along with a ruling on discovery abuse that is a topic of other blogs, considered a jury instruction on mutual assent given by the district court in a case where Knox contended that it inadvertently sent an unexecuted drilling contract form to Gasco and then inadvertently executed it when Gasco returned it. While this would not normally cause this series of events to be a non-contract, Knox also contended that Gasco knew that Knox had no intention to enter into the drilling contract and that Gasco jumped at the deal. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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