Cambridge Massachusetts Building Expert Directory

Breach of an Oral Contract and Unjust Enrichment and Implied Covenant of Good Faith and Fair Dealing

December 23, 2023 — David Adelstein - Florida Construction Legal Updates
In an ideal world, parties would have written contracts. In reality, parties should endeavor to ensure every transaction they enter into is memorialized in a written contract. This should not be disputed. Of course, written contracts are not always the case. Parties enter transactions too often whereby the transaction is not memorialized in a clean written agreement. Rather, it is piecemealing invoices, or texts, or discussions, or proposals and the course of business. A contract can still exist in this context but it is likely an oral contract. Keep in mind if there is a dispute, what you think the oral contract says will invariably be different than what the other party believes the oral contract says. This “he said she said” scenario gets removed, for the most part, with a written contract that memorializes the written terms, conditions, and scope. A recent federal district court opinion dealt with the alleged breach of an oral contract. In Movie Prop Rentals LLC vs. The Kingdom of God Global Church, 2023 WL 8275922 (S.D.Fla. 2023), a dispute concerned the fabrication and installation of a complex, modular stage prop to be used for an event. But here lies the problem. The dispute was based on an oral contract and invoices. The plaintiff, the party that was fabricating the modular stage prop, sued the defendant, the party that ordered the stage prop for the event, for non-payment under various claims. The defendant countersued under various claims. 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

Court Finds No Coverage for Workplace “Prank” With Nail Gun

April 04, 2022 — Craig Rokuson - Traub Lieberman Insurance Law Blog
In the recent case of Metro. Prop. & Cas. Ins. Co. v. Burby, 2022 NY Slip Op 22070, ¶ 1 (Sup. Ct.) Justice Richard M. Platkin of the Supreme Court of Albany County, New York examined a homeowners insurance policy and determined that a duty to defend was triggered in a case seeking recovery for injuries sustained when the insured, Burby allegedly discharged a nail gun in the bathroom of a work facility at which both Burby and the underlying plaintiff worked. Burby pled guilty to assault in the third degree for recklessly causing physical injury. MetLife, Burby’s carrier, disclaimed coverage based on lack of an occurrence, the business activities exclusion and the intentional loss exclusion, which bars coverage for injuries expected or intended by the insured or injuries that are the result of the insured’s intentional and criminal acts or omissions. Justice Platkin initially reviewed the intentional loss exclusion and lack of an occurrence and found that, from a duty to defend perspective, neither provided a dispositive coverage defense. However, the court found that the broadly worded business activities exclusion, which was not the subject of MetLife’s motion and instead was the subject of a cross motion by Burby, applied to bar coverage. In doing so, the court searched the record and granted summary judgment on the issue, despite MetLife not moving for relief under the exclusion. With respect to the expected or intended prong of the intentional loss exclusion, the court found that, even if Burby did intend to pull the trigger of the nail gun, it was not pled in the underlying complaint that the harm that resulted to the plaintiff was expected or intended. As such, the court concluded that MetLife did not prove that there was no possible factual or legal basis upon which it could be found that Burby did not reasonably expect or intend to cause injury to the plaintiff. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

California Bullet Train Clears Federal Environmental Approval

June 30, 2014 — Michael B. Marois – Bloomberg
The U.S. Federal Railroad Administration has approved an environmental review needed to begin building a portion of a $68 billion California high-speed rail line that has been mired in lawsuits. The agency, part of the Transportation Department, said in a release that it cleared a 114-mile (183-kilometer) stretch of the project in the Central Valley. The California High-Speed Rail Authority has been blocked from selling bonds to begin construction of the first U.S. bullet train until a court decides whether details of the financing were adequately disclosed. Read the court decision
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Reprinted courtesy of Michael B. Marois, Bloomberg
Mr. Marois may be contacted at mmarois@bloomberg.net

Texas Jury Awards $5.3 Million to Company Defamed by Union: Could it work in Pennsylvania?

December 21, 2016 — Wally Zimolong – Supplemental Conditions
In early September a Texas jury awarded a janitorial $5.3 million against the local chapter of the SEIU. The janitorial firm claimed that the SEIU damaged its reputation and caused it damages when it spread false, defamatory, and disparaging stories about the firm. Specifically, the janitorial firm claimed that the SEIU told the janitorial firms customer and potential customers that the firm “systematically failed to pay its employees for all hours worked, instructed janitors to work off the clock and had fired, threatened or refused to hire janitors who supported joining a union.” According to Law360.com, the union did this with “fliers, handbills, letters, emails, newsletters, speeches and postings on its website accused [the firm] of violating wage-and-hour and other labor laws.” Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Insurer Need Not Pay for Rejected Defense When No Reservation of Rights Issued

November 08, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The Massachusetts Appeals Court reversed the trial court's order that defense costs be paid for a period during which the insured rejected the defense even though no reservation of rights was issued. OneBeacon Am. Ins. Co. v. Celanese Corp., 2017 Mass. App. LEXIS 140 (Mass. App. Ct. Oct. 16, 2017). Celanese was sued over many years for claims of bodily injury due to asbestos and chemicals allegedly contained in its products and facilities. For many years, Celanese had an agreement with its insurer, OneBeacon, for defense cost-sharing. In April 2009, Celanese terminated this agreement and demanded that OneBeacon defend the cases under the policies previously issued. OneBeacon agreed to defend without a reservation of rights. OneBeacon also agreed to waive any issues of coverage and to indemnify Celanese from any settlements of judgments up to ts full liability limits. However, OneBeacon also sought to assume full control of the defense of claims against Celanese. Read the court decision
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Reprinted courtesy of Tred R. Eyerly - Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Miorelli Doctrine’s Sovereign Immunity in Public Construction Contracts — Not the Be-All and End-All

March 21, 2022 — David Adelstein - Florida Construction Legal Updates
In the Florida commercial contract public arena, there is a sovereign immunity doctrine known as the Miorelli doctrine after 1997 Florida Supreme Court decision, County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049 (Fla. 1997). This doctrine would apply to construction contracts between a contractor and a public body. Through the years, the Miorelli doctrine stands for the proposition in commercial transactions with a Florida public body “that the doctrine of sovereign immunity precludes recovery of the cost of extra work where claims for that extra work are ‘totally outside’ the terms of the contract.” Monroe County v. Ashbritt, Inc., 47 Fla.L.Weekly D594a (Fla. 3d DCA 2022). See also Asbritt, n.2 quoting Posen Construction v. Lee County, 921 F.Supp.2d 1350, 1356 (M.D.Fla. 2013) (“A claim for damages predicated on work ‘totally outside the terms of the contract‘ is barred by the doctrine of sovereign immunity, whereas damages caused by extra work done at the state’s behest and in furtherance of the contractual covenants (express or implied) are potentially recoverable.”) 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

Appeals Court Finds Manuscript Additional Insured Endorsements Ambiguous Regarding Completed Operations Coverage for Additional Insured

September 07, 2017 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Pulte Home Corp. v. American Safety Indemnity Co. (No. D070478; filed 8/30/17), a California appeals court found that manuscript additional insured endorsements on construction subcontractors’ policies were ambiguous regarding additional insured coverage for the developer, and that substantial evidence supported a finding that the insurer’s refusal to defend the developer was in bad faith. The court also approved awarding punitive damages on a one-to-one basis with the general damages. But the appeals court remanded the case for a further determination on the amount of Brandt fees, based on the developer’s change from a contingency to an hourly agreement. The Pulte case arose from the development of two residential housing projects beginning in 2003 and sold in 2005-2006. Subcontractors were required to name Pulte as additional insured on their policies, some of them issued by American Safety. In 2013, homeowners sued Pulte based in part on the work of subcontractors insured by American Safety, which then denied coverage to Pulte because the construction had taken place years earlier. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Never, Ever, Ever Assume! (Or, How a Stuck Shoe is Like a Construction Project Assumption)

October 21, 2019 — Melissa Dewey Brumback - Construction Law in North Carolina
This summer, I had the fortune of taking a trip to Europe. The first place I visited was Amsterdam. A lovely town with a lot of culture and more canals than you can shake a stick at. I was meeting family there, but had hours to kill ahead of time. So, I decided to take the train from the airport into the City Centre, leave my bags at the train station luggage locker, and begin exploring. My plan took its first misstep when I attempted to board the train. Not being in a hurry, I let the other passengers get on first. Sure, I noticed the train conductor blowing his whistle while I stepped onto the train, but figured I was fine since I was already on the steps up. Until, that is, the door began to close, with me in the doorway, suitcase in the train, one foot inside, and one foot mid step up to the cabin. The door closed on my backpack (which was still on my back), but I managed to force it into the train compartment. My shoe, however, was not quite as lucky. Part of my shoe made it inside, and part was outside the door. No worry– just look for the door release mechanism, right? Wrong! There was none. The train started up, with my shoe still halfway in and halfway out of the train. (Luckily my foot itself made it inside all in one piece). The conductor came along to scold me, and told me that he could *probably* rescue my shoe once we got to Central Station. In the meantime, I sat on a nearby jump seat, keeping tabs on my shoe and fuming that this was *not* the way I planned to start my vacation. Long story short– the train conductor was able to salvage my shoe, but not without a lot of commentary on how I should never have boarded the train after the whistle blew. Lesson learned. Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett PLLC
Ms. Brumback may be contacted at mbrumback@rl-law.com

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