CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Colorado’s Federal District Court Finds Carriers Have Joint and Several Defense Duties

October 10, 2013 — Bret Cogdill — Higgins, Hopkins, McLain & Roswell, LLC.
An issue that has plagued builders in Colorado construction defect litigation is the difficulty of getting additional insured carriers to fully participate in the builder’s defense, oftentimes leaving the builder to fund its own defense during the course of the litigation. Many additional insurers offer a variety of positions regarding why they will not pay for fees and costs during the course of a lawsuit. Some insurers argue that, until after trial, it is impossible to determine its proper share of the defense, and therefore cannot make any payments until the liability is determined as to all of the potentially contributing policies. (This is often referred to as the “defense follows indemnity” approach.) Others may make an opening contribution to defense fees and costs, but fall silent as fees and costs accumulate. In such an event, the builder may be forced to fund all or part of its own defense, while the uncooperative additional insured carrier waits for the end of the lawsuit or is faced with other legal action before it makes other contributions. Recent orders in two, currently ongoing, U.S. District Court cases provide clarity on the duty to defend in Colorado, holding that multiple insurers’ duty to defend is joint and several. The insured does not have to go without a defense while the various insurers argue amongst themselves as to which insurer pays what share. Read the court decision
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Reprinted courtesy of Bret Cogdill
Bret Cogdill can be contacted at cogdill@hhmrlaw.com

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Alabama Federal Magistrate Recommends Dismissal of Construction Defect Declaratory Judgment Action Due to Expanded Duty to Defend Standard

May 31, 2021 — Anthony L. Miscioscia & Margo Meta - White and Williams
While the starting point for assessing an insurer’s duty to defend requires comparing the allegations contained within a complaint to the language contained within the insured’s policy, the majority of states require an insurer to do more. In Alabama, a failure of the underlying complaint to allege damages falling within the policy’s terms is not necessarily fatal to coverage – if there are facts provable by admissible evidence to place the loss within coverage. The U.S. District Court for the Southern District of Alabama recently examined Alabama’s broadened duty to defend standard in Frankenmuth Mutual Insurance Company v. Gates Builders, No. 20-00596, 2021 U.S. Dist. LEXIS 83645 (S.D. Ala. Apr. 29, 2021). In Frankenmuth, the magistrate judge was tasked with determining whether the court should abstain from hearing an insurer’s declaratory judgment coverage action pending the resolution of the underlying state court action. The underlying state court action arose out of an allegedly defective construction project. Frankenmuth’s insured, Gates Builders, was hired to perform exterior and structural rehabilitation work at the Resort Conference Center Condominium (the Condominium) in Gulf Shores, Alabama. The project began in July 2014 and concluded in June 2015. In 2019, Gates Builders was informed that the Condominium’s decks were sagging. Gates Builders shored up the decks and provided the Condominium with a quote for the cost of repairs. In July 2020, the Condominium’s Association filed suit, alleging that the work performed in 2014 and 2015 was faulty and had caused damage to the Condominium. 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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Google’s Biggest Moonshot Is Its Search for a Carbon-Free Future

November 15, 2021 — Mark Bergen - Bloomberg
Google Bay View, the company’s newest campus, consists of three squat buildings nestled near the San Francisco Bay shoreline a few miles east of its headquarters in Mountain View, Calif. The first things visitors notice are the roofs. They curve down gently from pinched peaks, like circus tents, sloping almost to the ground. Each roof is blanketed with overlapping solar panels that glisten with a brushed metal sheen on the edges. Google calls this design Dragonscale, and indeed it looks as if a mystical beast is curled up by the water in Silicon Valley. Google envisions its latest campus as the embodiment of a grander ambition to run its operations entirely free of carbon. The company plans to open Bay View in January to “a limited number” of employees, depending on the pandemic. Beneath the buildings, thousands of concrete pillars plunged into the ground will serve as a sort of geothermal battery, storing heat to warm the building and water supply without natural gas. The roof panels were constructed with a unique textured glass to prevent glare and with canopies that emit a soft, glowing light into the spacious atria inside. “We call this the Cathedral of Work,” says Asim Tahir, who oversees energy decisions in Google’s real estate division. He stands by the southern entrance in a hard hat, mask, and safety vest. Read the court decision
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Reprinted courtesy of Mark Bergen, Bloomberg

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Why a Challenge to Philadelphia’s Project Labor Agreement Would Be Successful

February 22, 2018 — Wally Zimolong – Supplemental Conditions
There is a common misconception that all Philadelphia Public Works projects must be performed pursuant to a project labor agreement with various members of the Building and Construction Trades Council. This common misconception is even shared by the current Mayoral administration, who I saw in a recent court filing testified under oath that “project labor agreements are required for all construction projects in Philadelphia with a value of at least five million dollars.” (As is discussed below this is flat out false.) No one has yet to step forward to challenge Philadelphia’s project labor agreement scheme. However, if someone did, I think the challenge would be successful for three reasons. First, contrary to the Mayor’s representative’s statement, there is no requirement that all projects in excess of $5 million be subject to a project labor agreement. Second, Philadelphia’s project labor agreement excludes signatories to collective bargaining agreements with the United Steel Workers (USW) from participating, which violates public bid laws. Third, the exclusion of the USW, also gives rise to a challenge that federal labor law preempts the project labor agreement. A. Background on the Philadelphia PLA. Under a project labor agreement (PLA), a contractor wishing to perform work on a project agrees to be bound by the terms and conditions of employment established by the public owner and certain construction unions. Each PLA varies, but typically PLA’s will require a contractor’s employees to become members of a union – if they are already not members – in order to work on a project or will require a contractor to hire labor from a union hiring hall. PLA’s are controversial because they exclude non-union contractors from performing work on a project subject to a PLA, unless of course that contractor agrees to become “union” for purposes of that project. For reasons beyond this blog post, a merit shop contractor would be crazy to do that. The “Philadelphia PLA” that Mayor Kenney believes is required for all public projects over $5 million was instituted by Mayor Nutter through a 2011 Executive Order(Executive Order No. 15-11, Public Works Project Labor Agreements). Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Construction Lien Needs to Be Recorded Within 90 Days from Lienor’s Final Furnishing

March 22, 2018 — David Adelstein – Florida Construction Legal Updates

A lienor needs to record its construction lien within 90 days of its final furnishing date. This final furnishing date excludes punchlist, warranty, or the lienor’s own corrective work. A lien recorded outside of the 90-day window will be deemed invalid.

The opinion in In re: Jennerwein, 309 B.R. 385 (M.D. Fla. 2004) provides a good discussion of this 90-day window. This matter dealt with a debtor / owner’s bankruptcy where the owner was contesting the validity of a construction lien by its pool contractor. The owner contended that the lienor’s lien was recorded outside of this 90-day window thus rendering the lien invalid. The bankruptcy court was determining the validity of the lien.

In this matter, the owner hired a swimming pool contractor to construct a pool. On October 25, 2002, the pool contractor installed pavers around the pool. After this was performed, the pool contractor realized the owner was unable to obtain the financing to pay for the pool. As a result, the pool contractor ceased doing any more improvements. But, neither the pool contractor nor the owner terminated the contract. Then, on November 27, 2002, the pool contractor sent a supervisor to the property to inspect the pool (work-in-place), the pool equipment, the installed pavers, made a list of the unfinished work, and remove any debris. On January 27, 2003, the pool contractor recorded its lien.

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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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U.S. Housing Starts Top Forecast on Single-Family Homes

December 17, 2015 — Victoria Stilwell – Bloomberg
New-home construction in the U.S. rebounded in November, led by gains in single-family dwellings that signal the residential real estate industry will continue to support growth in the world’s largest economy. Housing starts climbed 10.5 percent to a 1.17 million annualized rate from a 1.06 million pace in October, figures from the Commerce Department showed Wednesday in Washington. The median estimate of 81 economists surveyed by Bloomberg was for a 1.13 million rate. Work began on the most stand-alone houses since January 2008, and permits for similar projects reached an eight-year high. Read the court decision
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Reprinted courtesy of Victoria Stilwell, Bloomberg

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Construction Client Advisory: The Power of the Bonded Stop Notice Extends to Expended Construction Funds

February 07, 2014 — Steven M. Cvitanovic - Haight Brown & Bonesteel LLP
CFO to CEO: “I have bad news, the developer on our biggest project has run out of money.” Frightening words for sure, but contractors should not overlook the bonded stop notice in situations where the construction lender seemingly has expended all construction funds. The recent case of Brewer Corporation v. Point Center Financial, Inc. 2014 WL 346636 illustrates this point. Contractors have two options at their disposal to secure payment on private works of improvement. The first is the mechanics lien. However, construction loan trust deeds are normally recorded prior to the commencement of construction and therefore have priority over mechanics liens. Connolly Development, Inc. v. Superior Court (1976) 17 Cal.3d 803, 827. Enter the bonded stop notice. The bonded stop notice requires the lender to withhold unexpended funds and, if it fails to do so, it is personally liable to the claimant for the full amount of the claim. But the stop notice also has the power of “priority” over any assignment of construction loan funds, whether before or after a stop notice is served. Civil Code § 3166, now Civil Code § 8544. Read the court decision
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Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com

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Insurance Policy Provides No Coverage For Slab Collapse in Vision One

August 17, 2011 — Douglas Reiser, Builders Council Blog

This post will examine whether Division Two of the Washington Court of Appeals properly reversed and remanded several lower court decisions in the case of Vision One LLC v. Philadelphia Indemnity Insurance. In short, and from the perspective of an appellate attorney, the court of appeals got the decision right. Given the rules of contract interpretation and causation in tort claims, there was really no other way the court could have ruled. I understand that from a contractor’s perspective and insurance perspective, the decision seems odd. But from a purely legal standpoint, the decision is well-reasoned and well-supported. Let me explain.



Background



First, here are the facts in a nutshell. Vision One is a construction company that undertook to construct a condo complex in Tacoma. Vision then contracted with D&D Concrete to pour a concrete slab for a section of the foundation. To shore the concrete slab, D&D further contracted Berg Equipment to provide necessary equipment to stabilize the structure. Well, something down the line went wrong. The shoring failed and the slab collapsed, causing a great deal of damage.

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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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