Cambridge Massachusetts Building Expert Directory

Ignoring Employee ADA Accommodation Requests Can Be Costly – A Cautionary Tale

March 29, 2021 — Peter Shapiro - Lewis Brisbois
As all employers should well know by now, the Americans with Disabilities Act (ADA) and many state and local counterparts may require employers to engage in an interactive process in response to a disabled employee’s request for a workplace accommodation. A recent ruling by the First Circuit Court of Appeals illustrates why employers have a very strong financial incentive to be proactive in adopting and rigorously enforcing their disability accommodation policies. In Burnett v. Ocean Properties, decided on February 2, 2021, a wheelchair user employed by a hotel chain call center complained internally that the office’s entrance was not accessible to him. It had heavy doors beyond which was a downward slope that caused the plaintiff’s wheelchair to roll backwards as the door closed on him, requiring him to exert greater force as he struggled to enter. He asked that push-button automatic doors be installed. The employer did not take any meaningful steps to address the complaint with the plaintiff. Eventually he was injured as he tried to open the door. Still, the employer did not follow up on his accommodation request. The plaintiff eventually filed an administrative charge with the Maine Human Rights Commission. The employer met with the plaintiff at that time, but claimed lack of familiarity with ADA compliance requirements and took no action to address the complaint. The plaintiff eventually resigned and filed suit in federal court when the administrative process was completed. Read the court decision
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Reprinted courtesy of Peter Shapiro, Lewis Brisbois
Mr. Shapiro may be contacted at Peter.Shapiro@lewisbrisbois.com

DE Confirms Robust D&O Protection Despite Company Demise

February 18, 2015 — James Yoder, Michael Onufrak and Siobhan Cole – White and Williams LLP
On Feb. 5, 2015, the United States Bankruptcy Court for the District of Delaware, per Judge Brendan L. Shannon, entered proposed findings of fact and conclusions of law in favor of the former president and CEO of Ultimate Escapes Inc., James M. Tousignant, and its chairman, Richard Keith, after determining that Tousignant’s actions in negotiating and executing a controversial asset purchase agreement were protected by the business judgment rule, despite the demise of the company a short time later. The failure of a business strategy, in and of itself, does not create liability on the part of the former directors and officers of a bankrupt company. Background Ultimate Escapes was a luxury destination club that provided its members with access to high-end vacation residences around the world. Unfortunately, Ultimate Escapes’ business suffered greatly from the economic downturn that began in 2008, and on Sept. 20, 2010, Ultimate Escapes filed voluntary petitions for relief pursuant to Chapter 11 of the Bankruptcy Code. Reprinted courtesy of White and Williams LLP attorneys James Yoder, Michael Onufrak and Siobhan Cole Mr. Yoder may be contacted at yoderj@whiteandwilliams.com Mr. Onufrak may be contacted at onufrakm@whiteandwilliams.com Ms. Cole may be contacted at coles@whiteandwilliams.com Read the court decision
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Negligent Misrepresentation Claim Does Not Allege Property Damage, Barring Coverage

December 20, 2017 — Tred Eyerly - Insurance Law Hawaii
The Tennessee Court of Appeals reversed the trial court's determination that the seller's alleged negligent misrepresentation regarding the propensity of the property to flood was covered. Erie Ins. Exh. v. Maxwell, 2017 Tenn. App. LEXIS 746 (Tenn. Ct. App. Nov. 15, 2017). The Chapmans purchased a residence from the Maxwells on March 7, 2014. Prior to the sale, the Maxwells completed a residential property disclosure in which they allegedly misrepresented the propensity of the property to flood. Five months after the purchase, the residence sustained damage as a result of two floods within three days. The Chapmans sued, alleging they relied on the Maxwells' representations regarding the propensity of the property to flood. The Chapmans further alleged that they sustained property damage as a result of the Maxwells' negligence and negligent misrepresentations. Read the court decision
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Reprinted courtesy of Tred Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Vallagio v. Metropolitan Homes: Colorado Supreme Court Upholds Declarant Consent Provision to Amend Arbitration Out of Declarations

June 15, 2017 — Jean Meyer - Colorado Construction Litigation
On June 5, 2017, the Colorado Supreme Court announced the Vallagio at Inverness Residential Con. Ass’n v. Metro. Homes, Inc., No. 15SC508, 2017 CO 69 (Colo. June 5, 2017) decision. In short, the Colorado Supreme Court upheld the validity of declarant “consent-to-amend” provisions and expressly held that claims under the Colorado Consumer Protection Act are arbitrable. By way of background, the Vallagio at Inverness Residential Condominiums were developed by Metro Inverness, LLC, (“Declarant”) which also served as the declarant for its homeowners association. Metropolitan Homes was Metro Inverness’ manager and the general contractor on the project. Greg Krause and Peter Kudla served as declarant-appointed members of the Association’s board during the period of declarant control. When it set up the Association, the Declarant included within the Association’s declaration a mandatory arbitration provision specifically for construction defect claims. This provision stated that it “shall not ever be amended without the written consent of Declarant and without regard to whether Declarant owns any portion of the Real Estate at the time of the amendment.” Read the court decision
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Reprinted courtesy of Jean Meyer, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Meyer may be contacted at meyer@hhmrlaw.com

New Case Alert: Oregon Supreme Court Prohibits Insurer’s Attempt to Relitigate Insured’s Liability

November 17, 2016 — Austin D. Moody – Saxe Doernberger & Vita, P.C. Blog
In a big win for policyholders, the Oregon Supreme Court recently ruled that that insurance companies are not allowed to relitigate the nature of damages awarded against their insureds during an underlying trial. In a coverage dispute stemming from a contractor’s faulty work on a condominium development, the insurer argued that at least a portion of the damages awarded represented the cost of repairing the contractor’s own work product. Coverage for such damages would be explicitly excluded by the policy. However, the Oregon Supreme Court found that the jury had been instructed that it could not award damages for the contractor’s own faulty workmanship. The court declined to give the insurer a chance to attempt to reclassify the nature of these damages. Read the court decision
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Reprinted courtesy of Austin D. Moody, Saxe Doernberger & Vita, P.C.
Mr. Moody may be contacted at adm@sdvlaw.com

Best Practices After Receiving Notice of a Construction Claim

July 18, 2022 — Lauren Meadows - Construction Executive
Being served with a lawsuit is typically not a welcomed experience. However, a construction professional that has been proactive in an early investigation of the claim will be better equipped to defend the case. The following best practices should be used by construction professionals as soon as a potential claim becomes evident. Notify Immediately after the receipt of a claim or notice of an incident, efforts should be made to notify all essential parties. This includes any potential insurers that may provide coverage for the claim as well as any parties to whom notice may be required or warranted under the project contract and/or scope of work. Some construction contracts contain an insurance clause that requires one party to provide additional insured coverage under its liability policy to another party. Notice should be given to any insurer that potentially provides additional insured coverage as soon as possible. The failure to provide an insurance company with prompt notice of a potential claim could result in the denial of the claim. Reprinted courtesy of Lauren Meadows, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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My Employees Could Have COVID-19. What Now?

March 23, 2020 — Amy R. Patton, Leila S. Narvid, Matthew C. Lewis, Robert Tadashi Matsuishi & Sarah J. Odia - Payne & Fears
Updated Guidance as of March 19, 2020. You are concerned about potentially sick employees in the workplace. One employee is off work sick for a couple of days, and then wants to return to work. Another plans to return to work after a week of travel. Another appears to be sick at work. They are coughing, sneezing, and appear to be short of breath. You are concerned they may have COVID-19. What can you do? You're not the only one concerned -- your other employees are, too. Your public-facing employees want to wear masks to protect themselves. One employee tells you he doesn’t want to touch anything that others in the office have touched. What are your obligations to these employees? Below, we address questions relating to keeping employees safe from COVID-19 in the workplace without violating the Americans with Disabilities Act (ADA) or employee privacy laws. Can I require an employee returning from days away from work due to illness to report the symptoms the employee was experiencing that kept him/her out of work? Short answer: yes, so long as the questions are limited to whether the employee has had flu-like symptoms. Though the ADA prohibits asking employees questions related to an employee disability, COVID-19 (like the seasonal flu) likely does not rise to the level of a disability, so asking an employee about flu-like (or COVID-19-like) symptoms is unlikely to elicit information related to a disability. The Equal Employment Opportunity Commission (EEOC) has taken the position that an employer may ask if an employee is experiencing flu-like symptoms if the employee reports being ill during a pandemic. Reprinted courtesy of Payne & Fears attorneys Amy R. Patton, Leila S. Narvid, Matthew C. Lewis, Robert Tadashi Matsuishi and Sarah J. Odia Ms. Patton may be contacted at arp@paynefears.com Ms. Narvid may be contacted at ln@paynefears.com Mr. Matthew may be contacted at mcl@paynefears.com Mr. Robert may be contacted at rtm@paynefears.com Ms. Odia may be contacted at sjo@paynefears.com Read the court decision
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America’s Factories Weren’t Built to Endure This Many Hurricanes

November 05, 2024 — Brooke Sutherland - Bloomberg
America’s factories aren’t built for the current cascade of extreme weather events. Dozens of industrial sites were in the zone of impact as Hurricane Milton slammed into Florida’s West Coast this week, including several concrete plants, speed boat manufacturing operations and facilities owned by Honeywell International Inc., Johnson Controls International Plc, General Electric Co. and Illinois Tool Works Inc., among others. Meanwhile, a Baxter International Inc. facility in Marion, North Carolina, that makes 60% of the intravenous fluids used in hospitals around the country was shuttered because of damage from Hurricane Helene just two weeks ago. Mines responsible for producing more than 80% of the world’s supply of commercial high-purity quartz in nearby Spruce Pine were also affected by severe flooding, raising the risk of disruptions to semiconductor production, which relies on the material. Read the court decision
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Reprinted courtesy of Brooke Sutherland, Bloomberg

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES