CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Economic Damages Cannot be Based On Speculation

October 16, 2018 — David Adelstein - Florida Construction Legal Updates
Economic damages, unlike non-economic damages (such as those in personal injury disputes), need to rest on a reasonable basis. Economic damages are those routinely seen in a construction dispute. These damages cannot be based on conjecture or guesswork and need to be supported by competent substantial evidence. Otherwise, the economic damages will be deemed too speculative because they are not reasonably quantifiable. I recently discussed a case involving the professional boxer Canelo Alvarez that was sued by a former promoter for unjust enrichment. Although the promoter recovered a jury verdict for unjust enrichment damages against Canelo Alvarez, the verdict was reversed because the methodology utilized by the promoter to demonstrate damages was speculative. This is definitely not what a plaintiff wants to happen after prevailing at the trial level! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Don’t Sign a Contract that Doesn’t Address Covid-19 (Or Pandemics and Epidemics)

December 14, 2020 — David Adelstein - Florida Construction Legal Updates
Do yourself a favor: Don’t sign a construction contract that doesn’t address COVID-19 or any pandemic or epidemic from this point forward! As the number of COVID-19 numbers rise, it would be reasonable to think this could have an impact on ongoing or future construction projects. For this reason, I want to revisit the subject of addressing COVID-19 (and any pandemic or epidemic) in your construction contract. The potential impact caused by COVID-19 could result from governmental regulations that impact construction of the project, shutdowns due to affected workers, owners’ decisions to suspend performance or adjust the way the project is being constructed, increased deep cleaning requirements, and increased measures associated with social distancing and re-sequencing of shifts. This all plays into the timeliness of performance and the productivity of manpower and equipment usage. When submitting a price, a lot of these considerations may not be factored in because doing so could lead to a price that will never get accepted. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Withholding Payment or Having Your Payment Withheld Due to Disputes on Other Projects: Know Your Rights to Offset

January 04, 2021 — Christopher C. Broughton, Jones Walker LLP - ConsensusDocs
Introduction The right to offset refers to the common sense ability to reduce or eliminate your payment obligations to a party who owes you money on another contract. With offsets, common law largely tracks common sense. The right of offset is recognized by statute and court decisions in many states as well as under federal law and the U.S. Bankruptcy Code. The right to offset can also be established in the contract or subcontract. But like many things that may seem simple, the right to offset can easily become complex. This article provides an overview of the extent and limits of the right to offset varies from state to state and with federal government contracts about the extent and limits of the right of offset. Construction trust fund statutes add another layer of complications. These variations may not be obvious or intuitive, but they have a tremendous impact on your right to get paid or your right to withhold payment. Because of the variations, you must always confirm the law applicable to your contract or subcontract, which may not be where the project or you are located. Read the court decision
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Reprinted courtesy of Christopher C. Broughton, Jones Walker LLP
Mr. Broughton may be contacted at cbroughton@joneswalker.com

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Constructive Suspension (Suspension Outside of an Express Order)

December 13, 2022 — David Adelstein - Florida Construction Legal Updates
In the federal procurement arena, there is a concept known as “constructive suspension.” Constructive suspension, while known in the federal arena, should reasonably apply to all projects when work is stopped outside of an express order to stop the work based on the law below. An unreasonable suspension is an unreasonable suspension and an express order to stop the work does not negate the effects of what really amounts to a suspension. “Constructive suspension occurs when work is stopped absent an express order by the contracting officer and the government is found to be responsible for the work stoppage.” P.R. Burke Corp. v. U.S., 277 F.3d 1346, 1359 (Fed. Cir. 2002). The government delay must be unreasonable to support a constructive acceleration claim. Id. “To demonstrate such a constructive suspension of work, the contractor must show that the delay (1) was for an ‘unreasonable length of time,’ (2) was proximately caused by the government’s actions, and (3) resulted in some injury to the contractor.” Fireman’s Fund Ins. Co. v. U.S., 2001 WL 36415627, *6 (Fed.Cl. 2001) (citation omitted). “Relative to proving that the delay was directly caused by the government, the contractor must concomitantly show that it was not delayed by any concurrent cause that would have independently generated the delay during the same time period even if it does not predominate over the government’s action as the cause of the delay.” Beauchamp Const. Co. v. U.S., 14 Cl.Ct. 430, 437 (Cl.Ct. 1988). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Get to Know BJ Siegel: Former Apple Executive and Co-Founder of Juno

April 10, 2023 — Aarni Heiskanen - AEC Business
Don’t miss BJ Siegel’s keynote speech at WDBE in September 2023. In this interview, we learn how he’s revolutionizing sustainable housing as a consumer product, using digital tools and asset-light approaches, while transforming how companies manage their data and processes. Designing commercial concepts BJ Siegel is on a mission to reinvent the world of urban multifamily housing through his prop tech firm, Juno. As a co-founder, Siegel is dedicated to creating branded consumer products that seamlessly blend functionality with impact. But his journey in design didn’t start there. Siegel’s expertise began as an architect at a small design firm in San Francisco, where he honed his skills in exhibit and product design. This led him to create exhibit designs for Apple’s product launches at their Macworld Expos. Eventually, he became part of the team that explored innovative retail ideas to take Apple’s products directly to consumers. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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Fifth Circuit: Primary Insurer Relieved of Duty to Defend Without Release of Liability of Insured

March 02, 2020 — Bethany L. Barrese & Ashley McWilliams - Saxe Doernberger & Vita, P.C.
In Aggreko, LLC v. Chartis Specialty Ins. Co.,1 the Fifth Circuit affirmed a decision by the Texas District Court and held that a Covenant Not to Execute constituted a “settlement” sufficient to exhaust policy limits and terminate a primary insurer’s duty to defend. This case arose out of a wrongful death suit filed by the parents of James Brenek II (“Brenek”). In 2014, Brenek was fatally electrocuted by an electrically energized generator housing cabinet while performing work on a rig in Texas for Guichard Operating Company, LLC (“Guichard”), a Louisiana-based drilling subcontractor. Guichard had leased the generator from Aggreko, LLC (“Aggreko”). A rental agreement between Guichard and Aggreko required Guichard to maintain commercial general liability insurance during the lease period and list Aggreko and the rig owner, Rutherford Oil Corporation (“Rutherford”), as additional insureds under the policy. Guichard’s primary insurance carrier, The Gray Insurance Company (“Gray”), agreed to defend and indemnify Aggreko and Rutherford in the wrongful death suit. The Gray policy had a limit of $1,000,000, subject to a $50,000 self-insured retention. Reprinted courtesy of Bethany L. Barrese, Saxe Doernberger & Vita, P.C. and Ashley McWilliams, Saxe Doernberger & Vita, P.C. Ms. Barrese may be contacted at blb@sdvlaw.com Ms. McWilliams may be contacted at amw@sdvlaw.com Read the court decision
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Ten-Year Statute Of Repose To Sue For Latent Construction Defects

November 12, 2019 — David Adelstein - Florida Construction Legal Updates
If you are dealing with latent construction defects, it is imperative that you consult with counsel to understand your rights. This not only includes claims for property damage stemming from latent construction defects, but also personal injury stemming from such defects. There is a ten-year statute of repose to sue for latent construction defects. See Fla.Stat. s. 95.11(3)(c). After the expiration of this statute of repose you are out of luck, meaning you can no longer sue. Now, I probably will not be the first to tell you that the statute of repose is not written so clear that you know the precise date it ends (or the last date you can sue for a latent defect). For this reason, you really want to operate conservatively, meaning it is always better to sue early if you think you could be running on the end of the statute of repose period. It is always advisable to avoid any legitimate argument that you filed your construction defect lawsuit too late. In Harrell v. The Ryland Group, 44 Fla. L. Weekly D2054b (Fla. 1st DCA 2019), a subsequent owner of a house sued the original homebuilder in negligence for a construction defect causing a personal injury. The subsequent owner claimed the homebuilder defectively installed an attic ladder (that provided access to the attic for the original construction) which collapsed as he was using it. The homebuilder filed a motion for summary judgment that the statute of repose expired so the owner’s claim was time-barred. The First District agreed. Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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No Bad Faith in Insurer's Denial of Collapse Claim

July 15, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The Tenth Circuit affirmed the district court's grant of summary judgment to the insurer on the insured's claims for collapse and bad faith. Christopher M. Wolpert Saddletree Holding, LLC v. Evanston Ins. Co., 2024 U.S. App. LEXIS 10377 (10th Cir. April 30, 2024). On May 7, 2019, Saddletree filed a claim with Evanston for damages sustained to its building which was used as a community events center. After a winter of heavy snowfall, Saddletree discovered that the building's steel support columns had buckled two or more inches and the roof had deflected downward approximately six inches. Evanston retained an engineer to inspect the building. The engineer determined that the damage was the result of the building's inadequate "design and/or construction." Evanston disclaimed coverage under the policy's exclusion for damage caused by "hidden or latent defects" or "any quality in property that causes it to damage or destroy itself." 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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