Cambridge Massachusetts Building Expert Directory

Clearly Determining in Contract Who Determines Arbitrability of Dispute

April 26, 2021 — David Adelstein - Florida Construction Legal Updates
As you know from prior postings: “Arbitration provisions are creatures of contract and must be construed ‘as a matter of contract interpretation.’ ” Fallang Family Limited Partnership v. Privcap Companies, LLC, 46 Fla.L.Weekly D639e (Fla. 4th DCA 2021) (citation omitted). Thus, if you prefer to arbitrate potential disputes, instead of litigating potential disputes, you want to include an arbitration provision in your contract. While there are positives and negatives to arbitration, no different than litigation, these positives and negatives should be considered during the contract negotiation process when dealing with the dispute resolution process in the contract. Generally, under the law, the arbitrability of a dispute is determined by the court. However, this can be deferred to the arbitrator with clear and unmistakable language in the contract. By way of example, the American Arbitration Association includes a rule that allows an arbitrator to rule on the arbitrability of the dispute, i.e., the claims asserted are subject to the governing arbitration provision in the contract. Recent law has suggested that if the objective is to authorize an American Arbitration Association arbitrator to make this determination, the contract clearly and unmistakably needs to state this intent and generally referring to the American Arbitration Association rules is not good enough. For this reason, I have included in arbitration provisions language that specifically states, “In the event of any dispute as to the arbitrability of any claim or dispute, the parties agree that an appointed arbitrator within the American Arbitration Association shall make this determination.” I have also included in arbitration provisions the converse so that if there is a dispute as to the arbitrability of a claim or dispute, the court, and not the arbitrator, will make this determination. 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

Developers Can Tap into DOE’s $400 Million for Remote and Rural Clean Energy Projects

December 10, 2024 — Robert A. James, Elina Teplinsky, Alicia M. McKnight, Sidney L. Fowler & Clarence H. Tolliver - Gravel2Gavel Blog
On October 3, 2024, the Department of Energy Office of Clean Energy Demonstrations announced a Notice of Funding Opportunity (NOFO) to fund up to $400 million for clean energy projects in rural and remote areas via its Energy Improvements in Rural or Remote Areas program. The NOFO will provide awards ranging from $2 million – $50 million, with plans to fund 20 to 50 projects. Awards will require a non-federal cost share, range across four topic areas, and target projects in rural and remote communities with populations of 10,000 people or fewer. Eligibility Applications are open to a wide range of entities, including for-profit and nonprofit organizations, state and local governmental entities, Indian Tribes and Tribal organizations, institutions of higher education, rural electric cooperatives, incorporated and unincorporated consortia, farming associations and cooperatives, and labor unions. Generally applicants must be U.S. entities, but foreign entities may be allowed to participate in limited circumstances. Applicants must identify at least one area in the U.S. or U.S. territories with a population of up to 10,000 people which will benefit from the proposal. Reprinted courtesy of Robert A. James, Pillsbury, Elina Teplinsky, Pillsbury, Alicia M. McKnight, Pillsbury, Sidney L. Fowler, Pillsbury and Clarence H. Tolliver, Pillsbury Mr. James may be contacted at rob.james@pillsburylaw.com Ms. Teplinsky may be contacted at elina.teplinsky@pillsburylaw.com Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com Mr. Fowler may be contacted at sidney.fowler@pillsburylaw.com Mr. Tolliver may be contacted at clarence.tolliver@pillsburylaw.com Read the court decision
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No Coverage for Counterclaim Arising from Insured's Faulty Workmanship

August 03, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The Eighth Circuit found there was no coverage for the insured's faulty workmanship. Am. Family Mut. Ins. Co., S.I. v. Mid-American Grain Distributors, LLC, 958 F.3d 748 (8th Cir. 2020). Mid-American contracted with Lehenbauer to design and construct a grain storage and distribution facility for Lehenbauer. Before the work was competed, Lehenbauer terminated Mid-American's services. Mid-American then sued Lehenbauer for breach of contract. Lehenbauer counterclaimed against Mid-American, alleged breach of "implied duties of workmanlike performance and fitness for a particular purpose" and negligence. Mid-American tendered the counterclaim to American Family. American Family accepted the tender under a reservation of rights, but sued Mid-American for a declaratory judgment. The district court granted American Family's motion for summary judgment, concluding that the counterclaims did not allege an occurrence. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Lumber Liquidators’ Home-Testing Methods Get EPA Scrutiny

June 10, 2015 — Matthew Townsend – Bloomberg
The home testing method Lumber Liquidators Holdings Inc. is using to reassure customers that their floors are safe is being questioned by the U.S. Environmental Protection Agency. In response to allegations that its Chinese-made laminate flooring emitted excessive levels of formaldehyde, a known carcinogen, Lumber Liquidators sent thousands of do-it-yourself tests to people who’d purchased the products. Customers use a device in the kit to measure the air in their homes for 24 hours, then send the package back to have the results evaluated. While the EPA didn’t take a position on the specifics of Lumber Liquidators’ test program, the agency said on its website that home air testing “may not provide useful information due to the uncertainties” of the method. Air tests don’t pinpoint the specific source of a contaminant, and there are no widely accepted standards for indoor formaldehyde levels, the agency said. Read the court decision
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Reprinted courtesy of Matthew Townsend, Bloomberg

Quick Note: Remember to Timely Foreclose Lien Against Lien Transfer Bond

July 09, 2019 — David Adelstein - Florida Construction Legal Updates
When a construction lien is transferred to a lien transfer bond pursuant to Florida Statute s. 713.24, instead of foreclosing the lien against the real property, you are foreclosing the lien against the lien transfer bond. This is not a bad deal and, oftentimes, is probably ideal. Remember, however, just because a construction lien was transferred to a lien transfer bond (pre-lawsuit) does not mean you get more time to file your lien foreclosure lawsuit. A lawsuit must still be filed within one year (short of that period being specifically shortened under operation of the law). 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

Tips for Drafting Construction Contracts

May 04, 2020 — Stuart Rosen - Construction Executive
When negotiating a construction contract, a contractor and its advisers must first determine the areas of greatest concern. For example, if the contractor believes that the drawings that were prepared by the architect and other design professionals are deficient, the contractor may want to reference those deficiencies in the contract. The contractor should emphasize that it is not responsible for the drawings and to the extent the project schedule is extended to allow the parties to address such issues with the drawings, the contractor would be entitled to additional compensation. This article provides contractors with additional tips, with a broad focus on project delays, for their protection when negotiating and drafting construction contracts, and helps contractors understand the rationale for such tips to better prepare contractors in such negotiations. Contractor’s liability to the owner for delay damages It is imperative that the contract include a waiver of claims for consequential damages. AIA Document A201TM – 2017 includes such a waiver, which provides, in pertinent part, “The Contractor and Owner waive Claims against each other for consequential damages arising out of or relating to this Contract … This mutual waiver is applicable, without limitation, to all consequential damages due to either party’s termination in accordance with Article 14.” Reprinted courtesy of Stuart Rosen, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Rosen may be contacted at srosen@proskauer.com

The Hidden Dangers of Construction Defect Litigation: A Redux

January 17, 2013 — David McLain, Higgings, Hopkins, McLain & Roswell, LLC

I previously wrote an article entitled “The Hidden Dangers of Construction Defect Litigation” for the Common Interests magazine, the monthly periodical of the Rocky Mountain Chapter of the Community Associations Institute. In that article, I discussed the potential negative effects of homeowners associations bringing construction defect suits as anything other than a last resort. The purpose of this post is to bring to light, by way of a real life example, the problems discussed in my previous article.

I have recently seen a lawsuit filed by an individual homeowner within a common interest community against the homeowners association, its management company, and the attorneys retained by the association to represent it in a construction defect lawsuit against the original developer, general contractor, and one of the design professionals. In his suit, the homeowner complains that the association’s construction defect attorneys “neglected to amend [their] complaint to include only and specifically the claims for damages for those properties, those buildings or condominium units, either by owner or specific locations, which had sustained damages or had faulty construction for which damages were being sought.” As a result of claiming damages throughout the entire community, the homeowner alleged that the entire community was tarred “with the black brush of litigation.”

As the homeowner explained in his complaint, he purchased a condominium for his daughter-in-law when she moved to Colorado to care for him after the death of his wife.

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Reprinted courtesy of David McLain
Mr. McLain can be contacted at mclain@hhmrlaw.com

Colorado SB 15-177 UPDATE: Senate Business, Labor, & Technology Committee Refers Construction Defect Reform Bill to Full Senate

April 01, 2015 — Derek J. Lindenschmidt – Higgins, Hopkins, McLain & Roswell, LLC
On March 18th, following a lengthy hearing with testimony and questioning for and against Senate Bill 15-177, the Senate Business, Labor & Technology Committee voted 6 to 2 to refer the bill, with new amendments, to the full Senate. While the main points of the bill remain strongly intact (check here for Senate Bill 177’s particulars), bill sponsors Senators Scheffler and Ulibarri offered four amendments, designed to bring additional compromise and clarity to the bill. The committee ultimately adopted these amendments, described below. Amendment 16 removed a prior prohibition in the bill that would have prevented attorneys from assisting in the preparation of the notice required to be provided to all homeowners before the commencement of a construction defect claim. Amendment 19 complemented 16 by providing further clarification regarding the contents and specificities required in said notice, including a disclosure of projected attorneys’ fees, costs, duration, and financial impact of pursuing construction defect claims. Amendment 17 permitted homeowners to approve the pursuit of construction defect claims through written consent. Lastly, Amendment 18 provided clarification regarding the bill’s requirement that mediators and arbitrators be selected and approved through mutual agreement of the parties. Read the court decision
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Reprinted courtesy of Derek J. Lindenschmidt, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Lindenschmidt may be contacted at lindenschmidt@hhmrlaw.com

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