CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Court of Appeal Puts the “Equity” in Equitable Subrogation

October 05, 2020 — Garret Murai - California Construction Law Blog
Subrogation as a concept is well understood in insurance circles. According to the Institute of Risk Management Institute’s glossary of insurance terms subrogation is “the assignment to an insurer by the terms of [a] policy or by law, after payment of a loss, of the rights fo the insured to recover the amount of the loss from one legally liable for it.” In other words, if an insurer comes out of pocket for something someone else broke, the insurer can turn to that responsible party for reimbursement of its out of pocket costs. Typically, subrogation is, as stated in IRMI’s glossary of insurance terms, a matter of contract and the rights and responsibilities of parties are set forth within the terms of a policy. However, subrogation may, as stated in IRMI’s glossary, also be matter of law. And this is where equitable subrogation comes in. “Equitable subrogation,” according to IRMI, is “the right of subrogation granted under common law when one party has made a payment on behalf of another and becomes entitled to whatever recovery rights the other party has against a responsible third party.” Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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OSHA Penalties—What Happened with International Nutrition

April 15, 2015 — Craig Martin – Construction Contractor Advisor
For those of you in and around Omaha, you recall the tragic collapse of International Nutrition’s plant in early 2014, killing two workers and injuring several others. OSHA swept onto the scene and issued citations. Surprisingly, the penalties totaled only $120,000. While a large sum, one would think two deaths and a score of injuries would generate a larger fine. International Nutrition appealed the penalties and they have now been reduced to $78,000, about a 1/3 reduction. Below, I’ll set forth what happened. The Original Penalties International Nutrition was originally fined $120,650.00 for citations ranging from willful, serious, to other-than-serious. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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Real Estate & Construction News Round-Up (11/03/21)

December 06, 2021 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog
Amenity-rich buildings become a key focus in enticing employees back into the office, supply chain links are strained by a lack of storage capacity in warehouses and port areas, green lease signings are on the uptick, and more.

• In an effort to draw employees back into the office and retain talent in a tight labor market, businesses are spending more than ever on upscale workspaces, paying high rents for modern, amenity-rich buildings. (Peter Grant, The Wall Street Journal)
• As sustainability and ESG factors become increasingly important, net-zero carbon commitments are emerging as the next big “must-have” for commercial real estate owners, as more than 100 businesses and organizations have signed on to the World Green Building Council’s Net Zero Carbon Buildings Commitment, which seeks to decarbonize the buildings sector by 2050 and get halfway there by 2030. (Elsa Wenzel, GreenBiz)

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Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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New York Governor Expected to Sign Legislation Greatly Expanding Recoverable Damages in Wrongful Death Actions

June 20, 2022 — Nicholas P. Hurzeler - Lewis Brisbois
New York, N.Y. (June 3, 2022) - The New York Senate and Assembly recently passed Bill S74A, also known as the Grieving Families Act, and it is expected that Governor Hochul will likely sign the bill into law. If passed, the law would significantly expand the damages available in wrongful death actions in a number of ways. First, Section 1 would amend EPTL section 5-4.1 to extend the statute of limitations to commence a wrongful death action from two years to three years and six months, a significant increase that will permit many more wrongful death cases to go forward. Second, Section 2 amends EPTL section 5-4.3, to allow recovery for emotional damages if a tortfeasor is found liable for causing a death. The current law only allows recovery of economic damages, such as economic hardship caused by a loss of parental guidance. The old law did not permit recovery of damages for grief, sympathy, and loss of companionship or consortium (see, e.g., Liff v. Schildkrout, 49 N.Y.2d 622 (1980); Bumpurs v. New York City Hous. Auth., 139 A.D.2d 438, 439 (1st Dept. 1988)), but that would change with passage of the new bill. Read the court decision
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Reprinted courtesy of Nicholas P. Hurzeler, Lewis Brisbois
Mr. Hurzeler may be contacted at Nicholas.Hurzeler@lewisbrisbois.com

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Damages or Injury “Likely to Occur” or “Imminent” May No Longer Trigger Insurance Coverage

January 05, 2017 — Masaki J. Yamada – Ahlers & Cressman PLLC
Washington Courts allow an insurer to determine its duty to defend an insured against a lawsuit based only on the face of the complaint and the limitations of the insurance policy. This is otherwise known as the “eight corners” rule (four corners of the complaint plus the four corners of the policy). In other words, the insurance company is not permitted to rely on facts extrinsic to the complaint in order to deny its duty to defend an insured. See Truck Ins. Exch. v. VanPort Homes, Inc., 147 Wn.2d 751, 763 (2002). The laws in Washington provide greater protection to the insured over the insurer when it comes to the insurer’s duty to defend. The duty to defend a claim is triggered if a claim could “conceivably” be covered under the policy. See Woo v. Fireman’s Insurance, 161 Wn.2d 43 (2007). If there is any ambiguity in a policy with regard to coverage, the ambiguity is interpreted in favor of the insured. As a result, contractors in Washington regularly tender claims or potential claims to their insurers even when damage has not occurred but will occur in the imminent future. Especially in the context of construction defect cases, a contractor will tender such a claim to its insurer to trigger the broad duty of the insurer to provide a defense. We also regularly recommend this to our contractor clients. For example, if a building owner serves a contractor with a claim that the construction and installation of a window system will imminently cause leaks and corrosion, we would recommend that the contractor tender the claim to its commercial general liability insurer. Washington courts have found a duty to defend when there are allegations in the complaint that covered damages will occur in the imminent future. Read the court decision
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Reprinted courtesy of Masaki J. Yamada, Ahlers & Cressman PLLC
Mr. Yamada may be contacted at myamada@ac-lawyers.com

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Open & Known Hazards Under the Kinsman Exception to Privette

February 15, 2018 — Frances Ma & Lawrence S. Zucker II – Haight Brown & Bonesteel LLP Publications & Insights
Gonzalez v. Mathis, 2018 WL 718528 confirms the difficulties a defendant will face when trying to overcome the Kinsman exception to the Privette doctrine on a dispositive motion when dealing with an open and obvious hazard. There, a professional window washer fell off a roof while walking along a parapet wall constructed by the owner of a home. The window washer filed suit against the homeowner and alleged three dangerous conditions on the roof: (1) the parapet wall forced those who needed to access a skylight to walk along an exposed two-foot ledge that lacked a safety railing; (2) dilapidated and slippery roof shingles; and (3) the lack of tie off points that would allow maintenance workers to secure themselves with ropes or harnesses. The homeowner filed a motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny which prohibits an independent contractor from suing his or her hirer for workplace injuries (“Privette doctrine”). There are two exceptions to the Privette doctrine. First, a hirer cannot avoid liability when he or she exercises control over the manner and means in which a contractor does his or her work and that control contributes to the injuries sustained – known as the “Hooker exception” (premised on the holding of Hooker v. Department of Transportation (2002) 27 Cal.4th 198). Second, a hirer may be found liable if he or she fails to warn the contractor of a concealed hazard on the premises – known as the “Kinsman exception” (premised on the holding of Kinsman v. Unocal Corp. (2005)). Reprinted courtesy of Frances Ma, Haight Brown & Bonesteel LLP and Lawrence S. Zucker II, Haight Brown & Bonesteel LLP Ms. Ma may be contacted at fma@hbblaw.com Mr. Zucker may be contacted at lzucker@hbblaw.com Read the court decision
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Colorado “occurrence”

January 06, 2012 — CDCoverage.com

In Greystone Construction, Inc. v. National Fire & Marine Insurance Co., No. 09-1412 (10th Cir. November 1, 2011), general contractors Greystone and Branan were each sued by purchases of homes built by each alleging defective construction performed by subcontractors. CGL insurer American Family Mutual Insurance Company defended both Greystone and Brannon while co-insurer National Fire & Marine Insurance Company denied a defense. Greystone, Branan, and American Family sued National Fire for contribution towards defense costs. The federal district trial court entered summary judgment for National Fire.

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Reprinted courtesy of CDCoverage.com

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Philadelphia Court Rejects Expert Methodology for Detecting Asbestos

October 11, 2017 — Christian Singewald, Wesley Payne & Jonathan Woy - White and Williams LLP
Lawsuits against talcum powder manufacturers have recently made headlines for the multimillion dollar verdicts returned in favor of plaintiffs with ovarian cancer. However, lawsuits brought by individuals with mesothelioma who did not work in occupations traditionally associated with asbestos exposure represent another potential liability for talcum powder manufacturers and retailers. In such cases, expert testimony linking mesothelioma to trace amounts of asbestos in talcum powder should be carefully scrutinized. Reprinted courtesy of White and Williams LLP attorneys Christian Singewald, Wesley Payne and Jonathan Woy Mr. Singewald may be contacted at singewaldc@whiteandwilliams.com Mr. Payne may be contacted at paynew@whiteandwilliams.com Mr. Woy may be contacted at woyj@whiteandwilliams.com Read the court decision
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