CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Judge Halts Sale of Brazilian Plywood

June 06, 2022 — Beverley BevenFlorez – CDJ Staff
A permanent injunction was issued by Judge Roy Altman in a Ft. Lauderdale federal court on May 24th that requires the revocation of all PS 1 certificates that were issued by PFS-TECO to more than a dozen Brazilian mills that produced structural plywood for the U.S. market, reported Business Wire. “This case highlights how a few bad actors profited by essentially looking the other way while substandard, and potentially dangerous plywood was imported into the U.S. and used to build homes and businesses,” Michael Haglund, counsel representing the U.S. Structural Plywood Integrity Coalition, of Haglund Kelley, LLP, told Business Wire. Building codes throughout the U.S. require the use of PS 1 structural plywood in construction. "If product standards are not being met, there can be serious implications for all homes constructed using those substandard wood panel products," Tyler Freres, VP of Sales for Freres Engineered Wood, told CDJ. "Contractors and homeowners should be able to trust that U.S. certification agencies are doing their due diligence to accurately inspect panels, ensuring consumers' health and safety." The U.S. Structural Plywood Integrity Coalition, including nine family-owned U.S. plywood manufacturers, alleged that PFS-TECO falsely certified that plywood from Brazil met U.S. structural integrity requirements. This substandard plywood has been used throughout the U.S. In particular, it was used during the hurricane reconstruction efforts in Florida and Puerto Rico due to its cheaper price. In 2021, Brazilian plywood made up 11% of the U.S. supply with nearly 1.2 billion square feet sold. Read the court decision
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Insured's Failure to Prove Entire Collapse of Building Leads to Dismissal

July 19, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit affirmed the district court's dismissal of the insured's claim for damage to her home caused by collapse. Stewart v. Metropolitan Lloyds Ins. Co. of Texas, 2021 U.S. App. LEXIS 14221 (5th Girl May 13, 2021). One evening, the insured was awakened by a loud bang that shook her house. The next morning, she noticed the damage to her home, cracked sheetrock and sunken floors. She cut a hole through her floor and discovered that a couple of joists below her subfloor had broken and fallen away. The insured filed a claim with Metropolitan. Metropolitan hired an expert who found broken and deteriorated floor joists, deteriorated floor decking, walls not plumb and gaps in the wall-to-ceiling interface. It was determined that the rot in the floor joists and subfloor decking were caused by a combination of termite damage and exposure to moisture over the lifespan of the structure, resulting in the broken floor joists and unlevel floors. The insured's own expert agreed that termite damage and wood rot were the cause of the foundation collapse failure. 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

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Loose Bolts Led to Sagging Roof in Construction Defect Claim

February 10, 2012 — CDJ STAFF

Though the sagging roof is neither leaking nor a safety hazard, the town of Waynesville, North Carolina is suing the builder of its new fire station, as reported in the Smoky Mountain News. The engineers who examined the roof found a substantial number of loose bolts in the roof trusses. Additionally, the trusses themselves have become bent.



Tom Galloway, Waynesville’s Town Manager said “it needs to be remedied and fixed.” He said that the builder, Construction Logic, “never indicated a willingness to fix the roof.” The town is seeking the cost of repair, which Galloway estimated could be $400,000, and an additional $30,000 in damages. The suit states that Construction Logic failed to follow the plan specifications for the roof.

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Burden to Prove Exception to Exclusion Falls on Insured

April 19, 2022 — Tred R. Eyerly - Insurance Law Hawaii
In a dispute between two insurers, the Ninth Circuit relied upon Nevada law in finding that the burden of proving that an exception to the exclusion applies was on the insured. Zurich Am. Ins. Co. v. Ironshore Specialty Ins. Co., 2022 U.S. App. LEXIS 1626 (9th Cir. Jan. 20, 2022). Ironshore insured seven subcontractors. The policy included an exclusion providing there was no coverage for any property damage for the subcontractors' for "work performed prior to the policy inception." An exception to the exclusion provided that the exclusion did not apply to property damage that was "sudden and accidental and takes place within the policy period." The seven subcontractors were sued for work they had performed. Zurich defended and indemnified the subcontractors. Zurich then sued Ironshore seeking contribution and indemnification for defense and settlement costs. The parties stipulated that all construction work at issue had been completed before the inception of Ironshore's policy and that none of the complaints against the subcontractors alleged that sudden and accidental damage had occurred after the inception of Ironshore's policy. 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

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California’s Prompt Payment Laws: Just Because an Owner Has Changed Course Doesn’t Mean It’s Changed Course on Previous Payments

April 20, 2016 — Garret Murai – California Construction Law Blog
We’ve written before about California’s prompt payment laws which are designed to help contractors get paid in a timely and orderly fashion, which is always nice, right? California’s prompt payment laws require that project owners pay their direct contractors, who are in turn required to pay their subcontractors who are in turn required to pay their sub-subcontractors and so on within certain statutorily set deadlines, or be subject to prompt payment penalties nearly as high as the interest you pay on your credit cards. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel Rosen Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Largest Per Unit Settlement Ever in California Construction Defect Case?

October 28, 2011 — CDJ STAFF

BusinessWire reports that the Chelsea Court Homeowners Association has settled their construction defect case for $5.4 million. That works out to $169,000 per unit, which BusinessWire describes as “California’s largest per-unit recovery known to be on record to date.”

Most of the money in the settlement is coming from insurance companies for the builder and thirteen subcontractors. Issues included roof and window leaks, deck failures, and unsafe walkways.

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Motion to Dismiss COVID Claim Granted in Part, Denied in Part

February 06, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The insurer's motion to dismiss the insured's claim for business losses due to COVID-19 was granted in part, denied in part. SRL v Zurich Am. Ins Co., 2022 U.S. Dist. LEXIS 210058 (N.D. Ill. Nov. 21, 2022). Excelsior owned and managed the Westin Excelsior Rome, a luxury hotel in Rome. The hotel suffered business income losses with the onset of the pandemic.While the hotel was not forced to close, its bookings decreased to virtually nothing. The Excelsior's complaint alleged that the COVID-19 virus was present in and around the hotel as multiple guests and at least six employees tested positive for COVID-19. It further alleged that the virus attached to interior property and was in the air. Excelsior was insured under a commercial property policy issued by Zurich. The court agreed there was no direct physical loss because no structure suffered damage. Among the coverages under the policy, however, was a "Cancellation of Bookings" provision. Zurich agreed there was coverage under this provision, but argued that Excelsior had already reached its annual limit for Cancellation of Bookings claims. 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

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Colorado Supreme Court Issues Decisions on Statute of Limitations for Statutory Bad Faith Claims and the Implied Waiver of Attorney-Client Privilege

July 11, 2018 — Jennifer Arnett-Roehrich - Gordon & Rees Insurance Coverage Law Blog
The Colorado Supreme Court has been busy the past two weeks, issuing a couple rulings that should be of interest to the insurance industry:

Statute of Limitations for Bad Faith Statute: In Rooftop Restoration, Inc. v. American Family Mutual Insurance Co., 2018 CO 44 (May 29, 2018), the Colorado Supreme Court held that the one-year statute of limitations that applies to penalties, does not apply to claims brought under C.R.S. 10-3-1116, Colorado’s statutory cause of action for unreasonable delay or denial of benefits. Section 10-3-1116 provides that a first-party claimant whose claim for payment of benefits has been unreasonably delayed or denied may seek to recover attorney fees, costs, and two times the covered benefit, in addition to the covered benefit. A separate Colorado statute, CRS 13-80-103(1)(d) provides a one-year statute of limitations for “any penalty or forfeiture of any penal statutes.” To arrive at the conclusion that the double damages available under section 10-3-1116 is not a penalty, the Court looked at yet another statutory provision, governing accrual of causes of action for penalties, which provides that a penalty cause of action accrues when “the determination of overpayment or delinquency . . . is no longer subject to appeal.” The Court stated that because a cause of action under 10-3-1116 “never leads to a determination of overpayment or delinquency . . . the claim would never accrue, and the statute of limitations would be rendered meaningless.” Para. 15. Presumably, the default two-year statute of limitations, provided by CRS 13-80-102(1)(i), will now be found to apply to causes of action seeking damages for undue delay or denial of insurance benefits.

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Reprinted courtesy of Jennifer Arnett-Roehrich, Gordon & Rees Scully Mansukhani
Ms. Arnett-Roehrich may be contacted at jarnett-roehrich@grsm.com

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