Cambridge Massachusetts Building Expert Directory

Construction Defect Dispute Governed by Contract Disputes Act not yet Suited to being a "Suit"

June 25, 2019 — William S. Bennett - Saxe Doernberger & Vita, P.C.
The Southern District of California recently held that a series of demands for a general contractor to investigate and repair several construction defects at a U.S. Army facility did not constitute a “suit” within the meaning of the general contractor’s commercial general liability (“CGL”) policy. In Harper Construction Co., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., the U.S. Government hired Harper Construction Company (“Harper”) to construct a U.S. Army training facility for the Patriot Missile System in Fort Sill, Oklahoma. No. 18-cv-00471-BAS-NLS (S.D. Cal. Mar. 28, 2019). During the project, Harper hired Harper Mechanical Contractors (“Harper Mechanical”), an independent company, as a subcontractor “to perform demolition, grading, and other work at the Project.” After Harper completed the project, the government informed Harper of property damage at the project, “including, but not limited to, gypsum wallboard cracks and binding doors.” Harper attempted to repair the issues, but the problems continued. The issues were apparently the result of Harper Mechanical’s grading work. Subsequently, the government sent two letters requesting an investigation and asking Harper to “propose a plan to correct the issues.” As Harper undertook an investigation spanning multiple years, the government became increasingly frustrated with the delays. The government threatened to initiate “formal administrative recourse” and to demolish the project, forcing Harper to re-build from the ground up. It also sent Harper another letter requesting Harper submit a formal proposal to correct the issues. Read the court decision
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Reprinted courtesy of William S. Bennett, Saxe Doernberger & Vita, P.C.
Mr. Bennett may be contacted at wsb@sdvlaw.com

Unlicensed Contractor Shoots for the Stars . . . Sputters on Takeoff

September 20, 2017 — Garret Murai - California Construction Law Blog
Elon Musk . . . Eccentric engineer. Technology billionaire. And, now, litigation bad ass. Frequent readers of the California Construction Law Blog know that we’ve talked about the importance of being properly licensed when doing construction work and the risks to you if you don’t. One California contractor recently found this out the hard way. In Phoenix Mechanical Pipeline, Inc. v. Space Exploration Technologies Corp., California Court of Appeals for the Second District, Case No. B269186 (June 13, 2017), contractor Phoenix Mechanical Pipeline, Inc. (Phoenix) lost its boosters . . . err britches . . when it sued Elon Musk’s Space Exploration Technologies Corp. (Space X) due to its failure to have a California contractor’s license. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

Meet the Forum's ADR Neutrals: TOM NOCAR

March 25, 2024 — Marissa L. Downs - The Dispute Resolver
Company: Hahn Loeser & Parks, LLP Office Location: Columbus, Ohio Email: tnocar@hahnlaw.com Website: https://www.hahnlaw.com/professionals/j-thomas-nocar/ Law School: The Ohio State University Moritz College of Law Types of ADR services offered: Arbitration and Mediation Affiliated ADR organizations: AAA Construction Panel Geographic area served: Nationwide Q: Describe the path you took to becoming an ADR neutral. A: I am a former builder turned construction attorney. I spent 26 years building before going to law school. I’ve worn every hat in the industry—D/B business owner, owner’s rep, CM at risk, GC, design/builder, subcontractor, and vendor at some point in my prior career. I chose to adapt these experiences to a law career in 2009 with the focus of practicing construction law. Now I commonly represent commercial builders and developers. AAA added me to the Construction Roster in 2022. Read the court decision
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Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com

Federal Court Asks South Dakota Supreme Court to Decide Whether Injunction Costs Are “Damages,” Adopts Restatement’s Position on Providing “Inadequate” Defense

August 13, 2019 — Anthony L. Miscioscia & Timothy A. Carroll - White and Williams LLP
Do costs associated with complying with an injunction constitute covered “damages?” The U.S. District Court for the District of South Dakota recently certified that question to the South Dakota Supreme Court, in Sapienza v. Liberty Mutual Fire Insurance Company, No. 3:18-CV-03015-RAL, 2019 U.S. Dist. LEXIS 84973 (D.S.D. May 17, 2019). If the South Dakota Supreme Court takes on the question, it will become one of the few highest state courts to do so.[1] The Sapienza case is also notable because the court adopted § 12 of the Restatement of the Law of Liability Insurance (Restatement) regarding an insurer’s potential liability for providing an “inadequate” defense. In doing so, the Sapienza court joins a growing list of courts to rely upon or cite to the Restatement. The Sapienza case arose out of an underlying dispute between residential neighbors over the size and location of the Sapienzas’ new house they built in a historic district in Sioux Falls, SD. The newly-built house allegedly prevented the neighbors from using their fireplace, blocked natural light the neighbors previously enjoyed, and decreased the value of the neighbors’ house. The neighbors sought a permanent injunction requiring the Sapienzas to modify or relocate the house. The Sapienzas’ homeowners’ insurer provided them with defense counsel, but the insurer instructed the Sapienzas that it would not cover any costs associated with an injunction as such costs did not constitute covered “damages.” Reprinted courtesy of Timothy Carroll, White and Williams LLP and Anthony Miscioscia, White and Williams LLP Mr. Schulman may be contacted at carrollt@whiteandwilliams.com Mr. Anderson may be contacted at misciosciaa@whiteandwilliams.com Read the court decision
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California Restricts Principles of “General” Personal Jurisdiction

April 01, 2015 — Kristian B. Moriarty and R. Bryan Martin – Haight Brown & Bonesteel LLP
In BNSF Railway Company v. Superior Court (Kralovetz) (Filed 3/27/2015, No. B260798), the California Court of Appeal, Second District, held a Delaware railroad corporation, with its principal place of business in Texas, was not subject to “general” personal jurisdiction in California, despite California housing 8.1% of the corporation’s total workforce, accounting for 6% of the corporation’s revenue, and containing just under 5% of its total track mileage. Plaintiff, Vicki Kralovetz, filed suit in California Superior Court against defendant, BNSF Railway Company (“BNSF”), and others, for wrongful death. Plaintiff contended her husband was exposed to asbestos products manufactured by BNSF in Kansas while working at a dismantling facility owned by BNSF’s predecessor in interest. Plaintiff claimed the exposure caused her husband to contract mesothelioma, which resulted in his death. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP and R. Bryan Martin, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at mmoriarty@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Read the court decision
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New York Court Permits Asbestos Claimants to Proceed Against Insurers with Buyout Agreements

December 06, 2021 — Patricia B. Santelle & Frank J. Perch, III - White and Williams LLP
A recent New York federal district court decision addresses a number of issues in the context of asbestos coverage involving an insolvent insured, holding that policy buyout agreements between the insured and its insurers did not bar actions by certain tort judgment creditors against some of the settling insurers, and further finding that such agreements can constitute fraudulent conveyances, especially where the proceeds of the settlement are not reserved for payment of insured claims. In the litigation pending in the Western District of New York (Mineweaser v. One Beacon Insurance Company, et al., No. 14-CV-0585A), certain asbestos plaintiffs sought recovery from excess insurers for judgments obtained against an insolvent asbestos supplier (Hedman Resources, formerly known as Hedman Mines), which ceased operations in 2007 due to insolvency. Hedman had at one time been a subsidiary of Gulf & Western. As of 2009-2011, the excess insurers of Gulf & Western were advised of exhaustion of primary insurance as well as Hedman’s insolvency. Reprinted courtesy of Patricia B. Santelle, White and Williams LLP and Frank J. Perch, III, White and Williams LLP Ms. Santelle may be contacted at santellep@whiteandwilliams.com Mr. Perch may be contacted at perchf@whiteandwilliams.com Read the court decision
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State Supreme Court Cases Highlight Importance of Wording in Earth Movement Exclusions

June 21, 2017 — Hannah E. Austin - Saxe Doernberger & Vita, P.C.
In Erie Insurance Property and Casualty Company v. Chaber, the West Virginia Supreme Court recently held that an insurance policy’s earth movement exclusion was unambiguous and applied to both manmade and natural earth movement. The Court also found that a narrow “ensuing loss” exception to the exclusion that provided coverage for glass breakage resulting from earth movement could not be extended to cover the entire loss. The Erie Insurance Property and Casualty Company (Erie) insured five commercial buildings owned by Dmitri and Mary Chaber. One of the properties was damaged by a landslide, and the Chabers filed a claim with Erie. Erie asserted that the loss was excluded from coverage because the policy excluded coverage for losses caused by earth movement, which was defined to include earthquakes, landslides, subsidence of manmade mines, and earth sinking (aside from sinkhole collapse), rising or shifting. The exclusion stated that it applied “regardless of whether any of the above . . . is caused by an act of nature or is otherwise caused,” and also contained an anti-concurrent causation clause. However, there was an exception for glass breakage caused by earth movement. Read the court decision
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Reprinted courtesy of Hannah E. Austin, Saxe Doernberger & Vita, P.C.
Ms. Austin may be contacted at hea@sdvlaw.com

Defective Concrete Blocks Spell Problems for Donegal Homeowners

October 30, 2013 — CDJ STAFF
A number of recently built homes in Donegal, Ireland are suffering from crumbing cement blocks used in the construction. This was previously seen in homes in the Leinster Region, and seems to be more widespread than previously thought. Damien McKay, an engineer who specializes in building litigation noted that the blocks started cracking about five years after the homes were constructed. In some cases, “the actual concrete blocks beneath the plaster can be easily broken and in some occasions with as little effort as rubbing with your fingers.” Read the court decision
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