Cambridge Massachusetts Building Expert Directory

Engineer TRC Fends Off Lawsuits After Merger

August 17, 2017 — Scott Van Voorhis - Engineering News-Record
In the wake of its merger with an investment fund, TRC Cos. has been busy swatting away pesky shareholder lawsuits driven by law firms who specialize in such litigation. Read the court decision
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Reprinted courtesy of Scott Van Voorhis, ENR
ENR may be contacted at ENR.com@bnpmedia.com

Coverage for Collapse Ordered on Summary Judgment

November 21, 2022 — Tred R. Eyerly - Insurance Law Hawaii
A collapsed floor in a restaurant was found to be covered. J&J Fish on Center Street, Inc. v. Crum & Forster Spec. Ins. Co., 2022 U.S. Dist. LEXIS 163661 (D. Wis. Sept. 12, 2022). J&J Fish rented property from Vision. Vision was obligated to keep the premises insured under an all-risk policy. Vision was also responsible for maintaining and repairing the property "including the slab flooring exterior walls of the premises." Vision never obtained insurance on the building, but J&J Fish secured a commercial property policy from Crum & Forster. On May 29, 2020, approximately 25% of the building's slab floor, the section beneath the walk-in cooler, collapsed into the crawl space below. Dr. Daniel Wojnowski inspected the crawl space and observed overall dampness as well as a pool of water in the space. He concluded that the collapse occurred because the steel support beams and steel elements of the floor corroded after prolonged exposure to moisture. Based on this report, Crum & Forster denied coverage. J&J Fish sued and the parties moved for summary judgment. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Construction Defects Are Occurrences, Says South Carolina High Court

December 20, 2012 — CDJ STAFF
The South Carolina Supreme Court has left the legislature’s new, expanded definition of “occurrence” in place, declining to declare it unconstitutional. South Carolina included faulty workmanship as an occurrence in response to a Supreme Court decision, which the court later reversed. One of the parties in that earlier decision, Harleysville Insurance, challenged the new law, claiming that the legislature didn’t have the power to pass a law to overturn a court ruling. The court did not concur. However, the court did determine that the law was not retroactive and covered only claims filed after the law became effective in May 2011. The Chief Justice of South Carolina noted that “insurance coverage for construction liability lacks clarity, particularly with respect to whether construction defects constitute ‘occurrences’ under construction general insurance policies.” Read the court decision
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Homeowners Must Comply with Arbitration over Construction Defects

January 06, 2012 — CDJ STAFF

The California Court of Appeals has upheld a decision by the Superior Court of Kern County that homeowners must comply with arbitration procedures in their construction defect claim. The California Court of Appeals ruled on December 14 in the case of Baeza v. Superior Court of Kern County, denying the plaintiff’s petition that the trial court vacate its order.

The plaintiffs in the case are homeowners in various developments built by Castle & Cook. The homes were sold with a contract that provided for “nonadversarial prelitigation procedures, including mediation, and judicial reference.” The homeowners made defect claims and argued that Castle & Cooke failed to comply with statutory disclosure requirements and that some of the contracts violate related statutes.

The appeals court found that there was no ground for appeal of the lower court’s order to continue with prelitigation procedures. The court noted that the plaintiffs could not seek a review of the mediation until a judgment was issued, but that then the issue would be moot. The court felt that there were issues presented that needed clarification, and so they reviewed this case. This was cleared for publication.

The court considered the intent of the legislature in passing the Right to Repair Act, noting that “under the statutory scheme, the builder has the option of contracting for an alternative nonadversarial prelitigation procedure,” as established in Chapter 4. The court noted that Chapter 4 “contains no specifics regarding what provisions the alternative nonadversarial contractual provisions may or must include.”

The plaintiffs contended that the builder was in violation of the standards set out in Section 912, however the court responded that these sections set out one set of procedures, but they concluded that “if the Legislature had intended the section 912 disclosure provisions…it could have made the requirements applicable to all builders by locating them in a section outside Chapter 4.”

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Conversations with My Younger Self: 5 Things I Wish I Knew Then

July 24, 2023 — Steve Swart - The Dispute Resolver
I remember the morning I became a construction law attorney. It was on my birthday several years ago when a partner called me into his office and asked me to review the A107 contract form for a large firm client. The assignment gave me a new language to speak and contract provisions that I came slowly to understand. I quickly moved into construction litigation and would soon learn that a "fragnet" was not the newest social media app but an important part of a delay claim. I read Spearin's biography and learned how to assess recoverable damages for different claims—costs to repair, replacement and betterment, increased financing/carrying costs, and the like. It took a lot of blood, sweat, and tears to get to where I am now. Echoing Rod Stewart’s sentiment—“I wish that I knew then, what I do now, when I was younger”—here are five tips I’d pass along to the younger me or anyone who is beginning their career as a construction lawyer: Read the court decision
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Reprinted courtesy of Steve Swart, Williams Mullen
Mr. Swart may be contacted at sswart@williamsmullen.com

Obtaining Temporary Injunction to Enforce Non-Compete Agreement

June 09, 2016 — David Adelstein – Florida Construction Legal Updates
When a party breaches a non-compete agreement (with a non-solicitation clause), the non-breaching party typically moves for a temporary injunction. The breaching party is the party that signed the non-compete agreement, such as a former employee or consultant that agreed not to solicit its employer’s customer lists or referral sources upon leaving. The non-breaching party or the party moving for the temporary injunction is the party that is looking to protect its trade secret customer lists or referral sources, such as the employer. Read the court decision
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Reprinted courtesy of David M. Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Defense for Additional Insured Not Barred By Sole Negligence Provision

August 11, 2011 — Tred R. Eyerly - Insurance Law Hawaii

A general contractor was entitled to a defense as an additional insured when the underlying complaint did not allege it was solely negligent.Â A-1 Roofing Co. v. Navigators Ins. Co., 2011 Ill. App. LEXIS 656 (Ill. Ct. App. June 24, 2011).

A-1 was the general contractor for a roof resurfacing job at a high school. Jack Frost Iron Works Inc. (“Frost”) was one of A-1’s subcontractors. Frost had a CGL policy with Navigators Insurance Company under which A-1 was an additional insured.

An employee of Frost’s subcontractor Midwest Sheet Metal Inc. was killed at the job site when a boom-lift he was operating flipped over. The boom-lift had been leased by another Frost subcontractor, Bakes Steel Erectors, Inc. (BSE). The deceased's estate filed suit against A-1, BSE and two other defendants.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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New York Court of Appeals Finds a Proximate Cause Standard in Additional Insured Endorsements

June 15, 2017 — Geoffrey Miller - Saxe Doernberger & Vita, P.C.
In The Burlington Insurance Company v. NYC Transit Authority, et al., No. 2016-00096, the New York Court of Appeals issued a landmark decision with regard to the meaning of “caused, in whole or in part, by” in the additional insured context. In a split decision, the court rejected Burlington Insurance Company’s argument that the language implied a “negligence” standard, but held that coverage was provided to the additional insured only where the named insured’s acts or omissions were the proximate cause of the injury:

While we [the majority] agree with the dissent that interpreting the phrases differently does not compel the conclusion that the endorsement incorporates a negligence requirement, it does compel us to interpret ‘caused, in whole or in part’ to mean more than ‘but for’ causation. That interpretation, coupled with the endorsement’s application to acts or omissions that result in liability, supports our conclusion that proximate cause is required here.[1]

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Reprinted courtesy of Geoffrey Miller, Saxe Doernberger & Vita, P.C.
Mr. Miller may be contacted at gjm@sdvlaw.com

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES