Cambridge Massachusetts Building Expert Directory

Additional Elements a Plaintiff Must Plead and Prove to Enforce Restrictive Covenant

April 19, 2021 — David Adelstein - Florida Construction Legal Updates
Florida Statute s. 542.335 is a statute that deals with restrictive covenants in contracts that impose a restraint on trade. It is an important statute to determine invalid restraints on trade that unreasonably or unfairly prevent competition. Any invalid restraint on trade is unenforceable. Restrictive covenants–or covenants in agreements that restrict you or prevent you from doing something–may unsuspectingly be included in contracts or the impact of the restrictive covenant may not be appreciated at the onset. A party seeking to enforce a restrictive covenant in a contract has the additional burden of PROVING the validity and reasonableness of the restrictive covenant:

Under section 542.335, three requirements must be satisfied for a restrictive covenant to be enforceable: (1) the restrictive covenant must be “set forth in a writing signed by the person against whom enforcement is sought”; (2) the party seeking to enforce the restrictive covenant “shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant”; and (3) the party seeking to enforce the restrictive covenant “shall plead and prove that the contractually specified restraint is reasonably necessary to protect the legitimate business interest or interests justifying the restriction.”

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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

After Breaching Its Duty to Defend, Insurer Must Pay Market Rates for Defense Counsel

October 30, 2023 — Tred R. Eyerly - Insurance Law Hawaii
After breaching its duty to defend, the insurer could not take advantage of a California statute allowing insurers to establish rates for defense counsel. S. Cal. Edison Co. v. Greenwich Ins. Co., 2023 U.S. Dist. LEXIS 151695 (C.D. Cal. July 28, 2023). Edison was an additional insured under a policy issued by Greenwich Insurance Company to Utility Tree Service, Inc. (UTS). UTS contracted with Edison to provide vegetation management services near Edison's transmission lines. The Greenwich policy provided additional insured coverage to third parties to the extent of UTS's obligations under the contract. Edison was sued in numerous lawsuits for property damage caused by the Bobcat wildfire in the Angeles National Forest (Bobcat Wildfire lawsuits). Edison tendered the defense in each lawsuit to Greenwich. Coverage was denied, however, based on a lack of underlying allegations or extrinsic evidence that Edison's liability resulted from UTS's negligent actions. 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

Improper Classification Under Davis Bacon Can Be Costly

April 01, 2015 — Craig Martin – Construction Contractor Advisor
The Department of Labor announced late last year that it had recovered nearly $2 million in back wages and fringe benefits from a subcontractor that provided constructions services at the federally funded Crescent Dunes Solar Energy Project in the Nevada desert. This was not a failure to pay Davis Bacon wages, but a failure to properly classify laborers on the project. The DOL determined that the laborers should have been paid as skilled trade steelworkers, not general laborers. As the subcontractor found out, this proved very costly. The subcontractor submitted its bid, classifying its laborers as general laborers and designating their wage at $30.00. The laborers were to assemble billboard sized mirrors on the project. There is some indication that the Department of Energy agreed with the classification, even though the Department of Labor has the final say on classifications. The Department of Labor’s investigation revealed that the laborers routinely performed duties in skilled trades, such as ironworking, electrical work, painting or bridge crane operation. Based on these activities, the Department of Labor concluded that the laborers should have been paid $60.00 per hour plus fringe benefits. 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

What California’s COVID-19 Reopening Means for the Construction Industry

July 05, 2021 — Garret Murai - California Construction Law Blog
This past Wednesday, Governor Newsom announced that California would reopen after being in lockdown for over a year due to COVID-19. Gone is Governor’s Stay at Home Executive Order. Gone is California’s Blueprint for a Safer Economy. And gone is the state’s somewhat confusing four-tier, yellow (minimal), orange (moderate), red (substantial) and purple (widespread), risk-level mapping system. So what does this mean for the construction industry? Well it’s not quite business back to usual. CalOSHA’s Standards Board voted this past Thursday to pass revised COVID-19 Emergency Temporary Standards (“Revised Standards”). That same day, Governor Newsom signed Executive Order N-09-21 implementing the Revised Standards immediately while they are being reviewed by the Office of Administrative Law. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Evacuations in Santa Barbara County as more Mudslides are Predicted

March 14, 2018 — Dave Suggs – CDJ Staff
Alene Tchekmedyian’s LA times article “Storm triggers evacuations in Santa Barbara County: 'Don't be fooled into thinking that this can’t happen again',” warns of the deadly potential of mudslides following the devastation that occurred in January that caused 21 fatalities and damaged homes in Montecito. Debris flow could be triggered by rainfall rates predicted to exceed half and inch per hour. In some areas as much as seven-tenths of an inch of rain per hour are possible because of a chance of thunderstorms. Mandatory evacuations began Monday to protect residents from the fast-moving storm that is predicted to be worse than January’s. Santa Barbara county officials asked that people help spread the word of the evacuation to everyone in their community. They also created an interactive map to help residents determine their risk level. Matilija Canyon and North Fork in Ventura County are under voluntary evacuation orders. Areas at the highest risk include Thomas, Sherpa, and Whittier burn areas. Residents can find shelter at the Goleta Valley Community Center at 5679 Hollister Avenue. Read the court decision
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Risk-Shifting Tactics for Construction Contracts

February 24, 2020 — Nate Budde - Construction Executive
Anyone who has worked in the construction industry is familiar with the financial risks involved. With thin margins, cash flow issues and the litany of potential claims and damages that can arise, contractors need to be able to manage that risk properly. There is the right way of going about it, and there's a wrong way. Unfortunately, the wrong way (which involves using leverage and shifting risk to other parties) is the more prevalent approach. There are different contractual tactics employed by owners and general contractors alike to shift financial risk to other parties. Why is construction so financially risky? There are a few different reasons there is so much risk involved. First and foremost, the construction payment chain itself is inherently risky. Owners and lenders release project funds and trust that the money will reach everyone on the job. But that can’t happen unless each link in the payment chain passes payment to the next. That's a lot of trust for an industry that's not particularly known for it. Another reason is how construction projects begin. Upfront payment is rare in this industry. This leads to floating the initial costs, extending credit and potentially borrowing money to do so. And those who typically bear this burden, lower-tier subs and suppliers, are the least equipped for that level of risk. Reprinted courtesy of Nate Budde, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Budde may be contacted at nate@levelset.com

Public Contract Code Section 1104 Does Not Apply to Claims of Implied Breach of Warranty of Correctness of Plans and Specifications

October 30, 2023 — Garret Murai - California Construction Law Blog
It’s the classic tale of two cities. One city is occupied by architects and engineers. The other, by contractors. And while the cities typically co-exist relatively peacefully together, at times, they do not, such as when a defect arises that can either be a design or construction defect. Sometimes, project owners are pulled into these fights as well. There is a common law rule that when contracting with a contractor the owner impliedly warrants to the contractor that the plans and specifications are sufficiently accurate and correct. And, if you work on local public works projects, you may be familiar with Public Contract Code section 1104 which provides that, with the exception of design-build projects, local public entities cannot require a bidder to assume responsibility for the completeness and accuracy of architectural or engineering plans and specifications. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

"On Second Thought"

October 28, 2024 — Daniel Lund III - Lexology
Rehearing requests are seldom granted by courts, and when they are, there’s usually something uniquely compelling in the request and the granting. So is the case in a matter involving monies deposited in the registry of the federal court in New Orleans related to work performed on cleanup after Hurricanes Maria and Irma in the U.S. Virgin Islands. The party depositing monies – which represented subcontract sums paid to it by the general contractor – held back several hundred thousand dollars based on withholding provisions in the various contracts in play. The Court was tasked with evaluating not only a pay-when-paid provision in the subcontract of the claiming party, but also incorporation of the terms of a higher tiered contract which allowed for the withholding. The Court initially granted summary judgment allowing the monies to be withheld. However, on request for rehearing, it was pointed up that while monies could be retained for purposes of covering attorney’s fees and costs related to litigation initiated by the plaintiff subcontractor’s vendors, there was a particular process for that withholding – and an assertion that the process was not followed. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

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