CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Federal Courts Reject Insurers’ Attempts to Recoup Defense Costs Expended Under Reservation of Rights

April 11, 2022 — Anthony L. Miscioscia & Margo Meta - White and Williams
In situations where there is a dispute over a duty to defend, an insurer may provide a defense to its insured, subject to a reservation of rights, to not only deny coverage for a defense, but also to file a declaratory judgment action and recoup defense costs in the event it is determined there is no duty to defend. But are defense costs recoupable? Last week, federal trial courts in Georgia and Pennsylvania answered this question with a resounding “no”. In Chemical Equipment Labs, Inc. v. Travelers Property Casualty Company of America, Case No. 19-3441, 2022 U.S. Dist. LEXIS 61298 (E.D.Pa. Mar. 31, 2022), the United States District Court for the Eastern District of Pennsylvania was called to determine whether Travelers Property Casualty Company of America (Travelers) was entitled to reimbursement of defense costs after it was determined that it had no duty to defend its insured in an arbitration for breach of a charter agreement. The Travelers’ policies did not contain an express reimbursement provision. The court found that Travelers was not entitled to reimbursement because under Pennsylvania law, “[r]eimbursement of defense costs requires an express provision in the written insurance contract.” Reprinted courtesy of Anthony L. Miscioscia, White and Williams and Margo Meta, White and Williams Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com Ms. Meta may be contacted at metam@whiteandwilliams.com Read the court decision
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Inspectors Hurry to Make Sure Welds Are Right before Bay Bridge Opening

August 27, 2013 — CDJ STAFF
Each of the 20 welds at the base of the tower of the Bay Bridge took more than four hours to complete, with the lengthy welds forming at one-and-a-half inches per minute. They’ve been finished for two years now, but inspectors are just now checking the welds for defects. Any defects found will have to be removed and repaired. Mazen Wahbeh, an engineer on the project, assumes that less than 5 percent of the total welded area will have to be repaired. According to Wahbeh, the bridge can open before the welds are thoroughly checked and repaired, and so “the contractor is prioritizing the remaining work.” Read the court decision
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Macron Visits Notre Dame 2 Years After Devastating Fire

April 26, 2021 — The Associated Press (Thomas Adamson & Jeffrey Schaeffer) - Bloomberg
Paris (AP) -- Two years after a fire tore through Paris’ most famous cathedral and shocked the world, French President Emmanuel Macron on Thursday visited the building site that Notre Dame has become to show that French heritage has not been forgotten despite the pandemic. Flanked by ministers, architects and the retired French army general who is overseeing the restoration of the 12th-century monument, Macron viewed the progress of the ambitious rebuilding project. He offered the pandemic-weary French public hope that a completion date will arrive one day, if not in the near future. “We're seeing here how, in two years, a huge job has been accomplished,” Macron said, recalling the “emotion” throughout France at the images of flames devouring Notre Dame on April 15, 2019. “We also see what remains to be done.” Read the court decision
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Reprinted courtesy of Bloomberg

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Interpreting Insurance Coverage and Exclusions: When Sudden means Sudden and EIFS means Faulty

June 15, 2020 — Ben Volpe - Colorado Construction Litigation Blog
EIFS, or Exterior Insulation and Finish System, is an integrated exterior insulation and synthetic stucco system, praised for its energy efficiency.[1] However, EIFS has come to be well known in the construction defect world as placing homes at risk due to a lack of a built-in moisture management system. Before long, insurance companies recognized the risk and began explicitly excluding coverage for EIFS-related damage. However, EIFS exclusions have not always been so clearly set forth in some policies, causing insurance coverage litigation. Recently, a Greenwood Village couple, Mark and Susan Mock, lost this fight. Built in 1994, the Mocks’ home was constructed with an EIFS system. The Mocks carried a homeowner’s insurance policy through Allstate, which covered “sudden and accidental loss” to property, but excluded coverage for “planning, construction or maintenance” issues. Such “planning, construction or maintenance” exclusions included “faulty, inadequate or defective designs.” A few months after a hailstorm, the Mocks discovered moisture-related damage to their home’s EIFS system. They reported the damage to Allstate, but Allstate would not cover it, reasoning that the damage to the EIFS system was excluded as a design and/or construction failure, and thus not covered as a “sudden and accidental” loss. The experts who evaluated the damage concluded it was the result of inherent flaws in the EIFS systems common in the 1994 timeframe, which involved long term moisture intrusion behind the cladding and no means for the water to escape. Read the court decision
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Reprinted courtesy of Benjamin Volpe, Higgins, Hopkins, McLain & Roswell, LLC
Mr. Volpe may be contacted at volpe@hhmrlaw.com

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Texas City Pulls Plug on Fossil Fuels With Shift to Solar

March 19, 2015 — Christopher Martin – Bloomberg
(Bloomberg) -- A city in the heart of the oil state of Texas is set to become one of the first communities in the U.S. to wean its residents off fossil fuels. The municipal utility in Georgetown, with about 50,000 residents, will get all of its power from renewable resources when SunEdison Inc. completes 150 megawatts of solar farms in West Texas next year. The change was announced Wednesday. It will be the first city to completely embrace clean power in the state, which is the biggest U.S. producer and user of natural gas. More will follow as municipalities seek to insulate themselves from unpredictable prices for fossil fuels, said Paul Gaynor, SunEdison’s executive vice president of North America. Burlington, Vermont, made a similar move with its purchase of a hydroelectric plant last year. Read the court decision
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Reprinted courtesy of Christopher Martin, Bloomberg
Mr. Martin may be contacted at cmartin11@bloomberg.net

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Pandemic Magnifies Financial Risk in Construction: What Executives Can Do to Speed up Customer Payments

August 23, 2021 — Lori J. Drake - Construction Executive
Construction businesses are waiting longer for payment in 2021, according to the newly released 2021 Construction Cash Flow and Payment Report conducted by Levelset. According to respondents, only 10% of construction businesses get paid in full, which is a 75% drop from 2020, and only 9% get paid on time, which is a drop of 60% over last year. The report, based on a survey of 764 construction professionals, illustrates that financial risk in the industry flowed down the payment chain. General contractors were four times more likely to get paid in 30 days, and 50% more likely to get paid in full. However, 20% of subcontractors, suppliers and other second-tier companies were kept waiting more than 60 days to collect payment. Reprinted courtesy of Lori J. Drake, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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U.S. Firm Helps Thais to Pump Water From Cave to Save Boys

August 14, 2018 — Dan Murtaugh - Bloomberg
Like much of the world, Patrick Decker has been engrossed in the saga of 12 boys and their soccer coach who became trapped in a flooded cave in Thailand. Unlike most, Decker is in a position to do something about it. As chief executive officer of Xylem Inc., one of the world’s top water technology firms, Decker spent much of last week reaching out to Thai officials and mobilizing his company of 17,000 employees to help. Decker said he sent four engineers to the cave site, and they assisted rescuers by boosting pumping power 40 percent. Thai Navy SEALs and international cave diving experts extracted eight boys over Sunday and Monday. Read the court decision
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Reprinted courtesy of Dan Murtaugh, Bloomberg

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Supreme Court Rejects “Wholly Groundless” Exception to Question of Arbitrability

February 06, 2019 — Justin Fortescue - White and Williams LLP
In newly appointed Supreme Court Justice Brett Kavanaugh’s first opinion, the United States Supreme Court held that the “wholly groundless” exception to arbitrability, which some federal courts had relied on as justification to decide questions of arbitrability over the express terms of a contract, was inconsistent with the Federal Arbitration Act and Supreme Court precedent. Based on this decision, where a contract delegates the question of arbitrability to an arbitrator, courts must respect the parties’ contract and refer the question to the arbitrator. Schein v. Archer & White, 586 U.S. __ (2019). In Schein, Archer & White brought a lawsuit against Henry Schein alleging violations of federal and state antitrust laws and seeking both monetary damages and injunctive relief. The relevant contract between the parties contained an arbitration provision that provided:

“Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief . . .) shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association.”

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Reprinted courtesy of Justin Fortescue, White and Williams LLP
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com

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