Cambridge Massachusetts Building Expert Directory

Forum Selection Provisions Are Not to Be Overlooked…Even On Federal Projects

September 16, 2024 — David Adelstein - Florida Construction Legal Updates
Forum selection provisions are NOT to be overlooked. Ever. Treat them seriously. Even on federal projects where there is a Miller Act payment bond. Consider forum selection provisions on the front end when negotiating your contract. In a recent opinion, U.S. f/u/b/o Timberline Construction Group, LLC vs. Aptim Federal Services, LLC, 2024 WL 3597164 (M.D.Fla. 2024), a joint venture prime contractor was hired by the federal government to build a temporary housing site. The joint venture prime contractor obtained a Miller Act payment bond. The joint venture then entered into a subcontract with one of its joint venture members and the member-subcontractor then engaged a sub-subcontractor. The sub-subcontractor claimed it was owed $3.5 Million and sued the member-subcontractor, as well as the prime contractor’s Miller Act payment bond, in the Middle District of Florida. The member-subcontractor and the Miller Act payment bond sureties moved to transfer venue to the Middle District of Louisiana pursuant to a forum selection clause in the contract between the sub-subcontractor and the member-subcontractor. The contract provided that the exclusive venue would be a United States District Court located in Louisiana. Forum selection provisions are analyzed in federal court under 28 U.S.C. 1404(a): “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” U.S. f/u/b/o Timberline, supra at *2. A forum selection provision is presumptively valid and given controlling weight. Id. (quotations and citations omitted). 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

Team Temporarily Stabilizes Delaware River Bridge Crack

February 02, 2017 — Justin Rice - Engineering News-Record
The team temporarily stabilizing the Delaware River Bridge and planning its permanent repair also are trying to find a precedent for the bridge’s uncommon fracture. Connecting the Pennsylvania and New Jersey turnpikes, the 61-year-old symmetrical truss bridge was shut down indefinitely on Jan. 20, when a complete fracture in a steel truss was discovered below the bridge deck. Read the court decision
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Reprinted courtesy of Justin Rice, ENR
Mr. Rice may be contacted at ricej@enr.com

Congratulations to BWB&O’s Los Angeles Office on Another Successful MSJ!

July 11, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce Partner Daniel Crespo and Associate Stefon Jackson successfully argued and won a Motion for Summary Judgment (“MSJ”) for our client, a property owner of an apartment complex. Plaintiff was involved in a physical altercation with one of the tenants at an apartment complex owned by our client. Plaintiff alleged that our client had notice of a propensity for violence claiming that there were prior instances of contentious interactions between this particular tenant and Plaintiff. As a result, Plaintiff alleged that our client had a duty to prevent further interactions between Plaintiff and the tenant presuming that an act of physical violence was reasonably foreseeable. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

Sochi Construction Unlikely to be Completed by End of Olympic Games

February 11, 2014 — Beverley BevenFlorez-CDJ STAFF
As journalists and visitors descended upon Sochi, Russia for this winter’s Olympic Games, they reported “used linen, improper toilets, poor wiring, unclean water and loose fixtures” using the Twitter hash tag @SochiProblems, according to The International Business Times. Furthermore, it is doubtful that the construction work “in and around Sochi” will be completed by February 23rd—the official end of the games. The International Business Times article features photographs of various unfinished construction sites including an apartment building, hotels, a sports store, and other buildings. The Olympic opening ceremony took place on February 7th. Read the court decision
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Reprinted courtesy of

Traub Lieberman Partner Ryan Jones Provides Testimony Before Florida Senate Committees

January 09, 2023 — C. Ryan Jones - Traub Lieberman
On December 12, Traub Lieberman Partner Ryan Jones provided testimony before two Florida Senate Committees during a Special Session to address the insurance crisis in Florida. Following the Special Session, the Florida Senate passed Senate Bill 2-A, which was designed to improve the property insurance marketplace for homeowners. Among other changes, the bill eliminates the one-way attorney’s fees provision in favor of insureds for lawsuits over disputed property claims and sets pre-requisites to filing bad faith lawsuits. The bill was recently signed into law by Florida Governor Ron DeSantis. Read the court decision
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Reprinted courtesy of C. Ryan Jones, Traub Lieberman
Mr. Jones may be contacted at rjones@tlsslaw.com

Texas Walks the Line on When the Duty to Preserve Evidence at a Fire Scene Arises

October 14, 2019 — Lian Skaf - The Subrogation Strategist
The extent to which a loss scene can be altered before adversaries can legitimately cry spoliation has long been a mysterious battleground in the world of subrogation. In the case of In re Xterra Constr., LLC, No. 10-16-00420-CV, 2019 Tex. App. LEXIS 3927 (Tex. App. – Waco, May 15, 2019), the Court of Appeals of Texas, Tenth District, addressed the question of when a party has a duty to preserve evidence. The court found that the trial court abused its discretion in imposing sanctions on the defendants for the spoliation of evidence as the evidence at issue was already gone by the time the defendants knew or reasonably should have known there was a substantial chance a claim would be filed against them. In this matter, Xterra Construction, LLC, Venturi Capital, Inc. d/b/a Artisan Cabinets and Keith D. Richbourg (collectively, Xterra) leased a commercial space from building owners Daniel Hull and William H. Beazley, Jr. (collectively, Hull) to be used as a woodworking and cabinet making warehouse. On October 18, 2014, there was a fire at the warehouse. By October 20, 2014, Xterra informed its insurance carrier, Cincinnati Insurances Companies (“Cincinnati”) of the loss and Cincinnati’s adjuster, Leann Williams (Williams), met with Keith D. Richbourg (Richbourg) at the site. Williams also hired expert Jim Reil (Reil) to inspect the fire scene to perform a cause and origin investigation. The next day, Williams informed Hull’s attorney that Reil would inspect the scene on October 23, 2014. Hulls attorney, however, did not send anyone to the scene to participate in the inspection. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Affordable Harlem Housing Allegedly Riddled with Construction Defects

July 09, 2014 — Beverley BevenFlorez-CDJ STAFF
A family in Harlem, New York has demanded that Abyssinian Development Corporation pay $250,000 to fix the construction defects in their newly-purchased townhouse, according to The Daily News. Allegedly, “[i]nterior walls, bamboo-tiled floors and windowsills began to crack shortly after they moved in, and an improperly installed gas boiler system” stopped working, while “rain has caused cellar walls to deteriorate.” The townhouse is part of the “Harlem Village Homes II initiative that offers affordable houses in Harlem to those making below $130,000.” Read the court decision
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Think Before you Execute that Release – the Language in the Release Matters!

June 17, 2024 — David Adelstein - Florida Construction Legal Updates
If you execute a release in exchange for payment or other consideration, remember the language in the release means something. THE RELEASE LANGUAGE MATTERS! And the meaning in the release may be way more than you intended so please make sure you truly digest and consider release language before executing. This sentiment could not be truer than in the 2009 decision Bell BCI Company v. United States, 570 F.3d 1337 (Fed. Cir. 2009). In this case, a contractor entered into a modification (change order) with the government. The modification included the following language: increase the contract amount by $2,296,963 … as full and equitable adjustment for the remaining direct and indirect costs of the Floor 4 Fit-out (EWO 240–R1) and full and equitable adjustment for all delays resulting from any and all Government changes transmitted to the Contractor on or before August 31, 2000. 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

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