Cambridge Massachusetts Building Expert Directory

Liebherr Claims Crane Not Cause of Brazil Stadium Construction Accident

February 14, 2014 — Beverley BevenFlorez-CDJ STAFF
Crane manufacturer Liebherr said in a statement that “its crane was not the cause” of the November 2013 construction incident that killed two workers, according to KHL. Liebherr claimed that “its investigations show that the crane had no technical defects and that the ground was not sufficiently stable for crane travel with a suspended load on the day of the accident.” Liebherr “assumes that all the reports currently being prepared about the accident will not reach any different conclusions,” reported KHL. Read the court decision
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Despite Feds' Raised Bar, 2.8B Massachusetts Offshore Wind Project Presses On

November 04, 2019 — Mary B. Powers - Engineering News-Record
Developers of the 800-MW, 84-turbine Vineyard Wind offshore wind energy farm in Massachusetts, set to be the first and largest commercial-scale project in the U.S., say they are committed to pushing through its $2.8-billion construction despite a sudden Trump administration permitting setback. Reprinted courtesy of Mary B. Powers, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the court decision
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Apple to Open Steve Jobs-Inspired Ring-Shaped Campus in April

February 23, 2017 — Adam Satariano - Bloomberg
Apple Inc. co-founder Steve Jobs’ last public event in 2011 was a city council meeting in Cupertino, California, where he presented plans for a sprawling new campus with a spaceship-shaped building and tree-filled park. Apple announced Wednesday that it will begin moving employees into the 2.9 million-square-foot facility in April. Apple said a new 1,000-seat auditorium at the facility will be named the Steve Jobs Theater in honor of its co-founder, who died four months after his city council presentation and would have turned 62 on Feb. 24. As with many large-scale construction projects, Apple faced budget overruns and delays. The building cost an estimated $5 billion (though Apple has never said how much), and the opening date had initially been set for 2015. Read the court decision
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Reprinted courtesy of Adam Satariano, Bloomberg
Mr. Satariano may be followed on Twitter @satariano

Real Case, Real Lessons: Understanding Builders’ Risk Insurance Limits

August 12, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
In the recent case of 5333 Mattress King LLC v. Hanover Insurance Company, the United States District Court for the District of Colorado provided significant insights into the limits of builders’ risk insurance policies. Mattress King LLC, a warehouse owner, faced a substantial loss when a subcontractor drove a crane over and damaged the warehouse’s concrete floor slab during construction. Despite having a builders’ risk insurance policy with Hanover Insurance Company, coverage was denied, leading to litigation. Applicable Policy Provisions The policy in question was a Commercial Marine/Commercial Lines Builders’ Risk insurance policy. Builders’ risk insurance is designed to cover direct physical loss to covered property during construction unless the loss is excluded or limited by the policy. Key exclusions of the policy at issue included losses caused by faulty, inadequate, or defective:

Planning, zoning, surveying, or development
Design, specifications, workmanship, repair, construction, renovation, remodeling, grading, or compaction
Materials used in construction or renovation
Maintenance of the covered property

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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Emergency Paid Sick Leave and FMLA Leave Updates in Response to COVID-19

April 06, 2020 — Yvette Davis & Kyle R. DiNicola - Haight Brown & Bonesteel
The Families First Coronavirus Response Act (“FFCRA”) was signed by the President on March 18, 2020 and will become effective no later than April 2, 2020. The law contains numerous updates to the country’s employment regulations in response to the Coronavirus pandemic of which employers should be familiar. Of particular note, the FFCRA makes limited amendments to the Family and Medical Leave Act. Now, pursuant to the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) employees may take up to 12 weeks of family and medical leave after having worked with the employer for 30 calendar days if the employee is unable to work (or telework) due to the employee’s need to care for a son or daughter under 18 years of age due to the child’s school closure or unavailability of a childcare provider due to a public health emergency, i.e., COVID-19. Unlike the FMLA, which does not apply to many small employers, this requirement applies to any employers with 500 or fewer employees. No mileage radius requirement exists under the EFMLEA. When an employee utilizes leave pursuant to EFMLEA, the first 10 days of that leave may consist of unpaid leave, but the employee may elect to substitute any accrued paid vacation leave, personal leave, or medical or sick leave, including the Emergency Paid Sick Leave provided for by the Act and described below). All subsequent days of leave taken by the employee after the tenth day must be paid by the employer at a rate of not less than two thirds of the employee’s regular rate of pay and the number of hours the employee would otherwise normally be scheduled to work. The cap is $200 per day or $10,000 in the aggregate. Reprinted courtesy of Yvette Davis, Haight Brown & Bonesteel and Kyle R. DiNicola, Haight Brown & Bonesteel Ms. Davis may be contacted at ydavis@hbblaw.com Mr. DiNicola may be contacted at kdinicola@hbblaw.com Read the court decision
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Key California Employment Law Cases: October 2018

December 11, 2018 — Alejandro G. Ruiz & Eric C. Sohlgren - Payne & Fears
This month’s key employment law cases address the test for independent contractor status, the legality of an incentive compensation system, and personal liability for wage and hour violations. Garcia v. Border Transp. Group, LLC, Cal. Ct. App. Oct. 22, 2018 Summary: Defendants must satisfy Dynamex ABC test to establish independent contractor status as defense to wage order claims, but Borello multifactor test applies to non-wage-order claims. Facts: Plaintiff leased a taxicab license and taxicab from defendants. Plaintiff brought several employment claims against defendants, including claims for whistleblower wrongful termination, unpaid wages, minimum wages, meal and rest break penalties, wage statement penalties, civil penalties under the California Labor Code Private Attorney Generals Act (“PAGA”), waiting time penalties, and unfair competition. Defendants filed a motion for summary judgment on all claims on the ground that plaintiff was an independent contractor and not an employee. Relying on the factors described in Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341, 256 Cal. Rptr. 543 (1989), defendant presented evidence that plaintiff set his own hours, used the cab for personal business, kept collected fares, used a radio dispatch service, entered into sublease agreements, held other jobs, and advertised services in his own name.The trial court granted summary judgment in favor of defendants. While plaintiff’s appeal was pending, the California Supreme Court decided Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903, 232 Cal. Rptr. 3d 1 (2018), establishing a new test for independent contractor status under the definition of employment found in the California Industrial Welfare Commission Wage Orders. Reprinted courtesy of Alejandro G. Ruiz, Payne & Fears and Eric C. Sohlgren, Payne & Fears Mr. Ruiz may be contacted at agr@paynefears.com Mr. Sohlgren may be contacted at ecs@paynefears.com Read the court decision
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Design and Construction Defects Not a Breach of Contract

February 14, 2013 — CDJ STAFF
The California Court of Appeals tossed out a breach of contract award in Altman v. John Mourier Construction. The decision, which was issued on January 10, 2013, sent the construction defect case back to a lower court to calculate damages based on the conclusions of the appeals court. The case involved both design issues and construction issues. According to the plaintiffs’ expert, the design plans did not make the buildings sufficiently stiff to resist the wind, and that the framing was improperly constructed, further weakening the structures, and leading to the stucco cracking. Additionally, it was alleged that the roofs were improperly installed, leading to water intrusion. The contractor’s expert “agreed the roofs needed repair, but disputed what needed to be done to repair the roofs and the cost.” The jury rejected the plaintiffs’ claims of product liability and breach of warranty, but found in their favor on the claims of breach of contract and negligence. The plaintiffs were awarded differing amounts based on the jury’s conclusions about their particular properties. Both sides sought new trials. JMC, the contractor, claimed that the jury’s verdicts were “inconsistent in that the relieved JMC of liability for strict products liability and breach of warranty, but found JMC liable for breach of contract and negligence.” The plaintiffs “opposed the setoff motion on the ground that the jury heard evidence only of damages not covered by the settlements.” Both motions were denied. After this, the plaintiffs sought and received investigative costs as damages. JMC appealed this amended judgment. The appeals court rejected JMC’s claims that evidence was improperly excluded. JMC sought to introduce evidence concerning errors made by the stucco subcontractor. Earlier in the trial, JMC had insisted that the plaintiffs not be allowed to present evidence concerning the stucco, as that had been separately settled. When they wished to introduce it themselves, they noted that the settlement only precluded the plaintiffs from introducing stucco evidence, but the trial court did not find this persuasive, and the appeals court upheld the actions of the trial court. Nor did the appeals court find grounds for reversal based on claims that the jury saw excluded evidence, as JMC did not establish that the evidence went into the jury room. Further, this did not reach, according to the court, a “miscarriage of justice.” The court rejected two more of JMC’s arguments, concluding that the negligence award did not violate the economic loss rule. The court also noted that JMC failed to prove its contention that the plaintiffs were awarded damages for items that were covered in settlements with the subcontractors. The appeals court did accept JMC’s argument that the award for breach of contract was not supported by evidence. As the ruling notes, “plaintiffs did not submit the contracts into evidence or justify their absence; nor did plaintiffs provide any evidence regarding contract terms allegedly breached.” The court also did not allow the plaintiffs to claim the full amount of the investigative costs. Noting that the trial court had rational grounds for its decision, the appeals court noted that “the jury rejected most of the damages claimed by plaintiffs, and the trial court found that more than $86,000 of the costs itemized in plaintiffs’ invoices ‘appear questionable’ as ‘investigation’ costs/damages and appeared to the trial court to be litigation costs nonrecoverable under section 1033.5.” Read the court decision
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Construction Defect or Just Punch List?

December 11, 2013 — CDJ STAFF
A couple in Dickinson, North Dakota have put big, green “buyer beware” signs on their home. They’re not planning on selling, but just trying to warn prospective neighbors of the problems they’ve had since moving into their new home. Andrea Thermes said her problems included leaking windows and uneven floors. “I absolutely love my house,” she said. “If we didn’t have the issues, I would be the happiest girl in the world.” One problem was a leaking picture window in her living room. The builder replaced it, but the first window that arrived was the wrong size. The new home is still under a warranty and the builder has been fixing issues as they arise. “They are upset with some of the problems they have had,” said William Henry, president of B-Dev, the builder of the home. Since Ms. Thermes’s window wasn’t repaired in time for Thanksgiving, Mr. Henry sent wine and beer to her home. “Not that that makes up for not having their window, but we’re trying to make this work and trying to appease them,” he said. But Mr. Henry said that some of the problems “are not really material defects,” characterizing them as “punch-list and warranty items.” Read the court decision
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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES