Cambridge Massachusetts Building Expert Directory

Nevada State Senator Says HOA Scandal Shows Need for Construction Defect Reform

November 13, 2013 — CDJ STAFF
A Nevada State Senator sees the ongoing HOA scandal as a sign that the state’s construction defect laws need to be revised. State Senator Mike Schneider says that the law “is flawed and actually makes it too easy to do what these folks have done.” What these folks have done has, of course, lead to a number of indictments and guilty pleas in federal court. One problem that Senator Schneider points to in current Nevada construction defect law is that homeowner attorneys get 40% of any settlement, sometimes leaving homeowners without sufficient funds to repair the defects. “It’s gotten out of hand. We pay some outrageous costs and fees in this cases.” Read the court decision
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How to Fix America

July 11, 2021 — Bloomberg CityLab
In 2011, then-President Barack Obama stood in front of the deteriorating Brent Spence Bridge linking Ohio and Kentucky with a plea to Republican leadership: Pass the jobs bill to rebuild America. (It did not pass.) Six years later, when asked about the same bridge, then-President Donald Trump answered “we’re going to get it fixed.” (It did not get fixed.) It took two trucks colliding on the Brent Spence’s lower deck — leading to a massive fire — just before 3 a.m. on Nov. 11, 2020, for work to begin. A post-crash inspection found the bridge structurally sound, and more than $3 million in repairs were made by year-end. But with traffic volume at around double its intended capacity, much more work is needed to alleviate persistent jams and accidents. Such has been the state of infrastructure in the U.S. for decades — fixes get put off until they’re absolutely necessary, and U.S. airports, roads and public transportation draw frequent comparisons to those in nations with far fewer resources. Meanwhile, countries in Europe, Asia and the Middle East have leapt ahead with so-called smart cities, high-speed trains and eco-friendly buildings. In 2019, the U.S. ranked 13th in the world in a broad measure of infrastructure quality — down from fifth place in 2002, according to the World Economic Forum’s Global Competitiveness Report. Read the court decision
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Reprinted courtesy of Bloomberg

Top 10 Take-Aways from the 2024 Fall Forum Meeting in Pittsburgh

December 03, 2024 — Marissa L. Downs - The Dispute Resolver
Over 500 construction law attorneys and consultants convened last week at the confluence of three rivers in what became the first-ever meeting in Pittsburgh, Pennsylvania of the ABA Forum on Construction Law. The Steel City was a fitting backdrop for a meeting focused on issues of design in construction. Thanks to the hard work of many, most notably the newly minted Forum Chair Keith Bergeron and Meeting Coordinators Kendall Woods and Michael Clark, the meeting's attendees brought home new connections and a host of new lessons learned. Read on for my top 10 take-aways from the 2024 Fall Meeting in Pittsburgh and feel free to share yours in the comments below. 10. An architect's standard of care does not require perfection. A common refrain across many of the meeting's plenary sessions was that any design that is produced by human hands will never be perfect. In recognition of our own fallibility, the legal standard to which design professionals will be held to account does not require that their designs be error-free. A design professional must generally exercise the degree of care and skill ordinarily exercised by professionals performing similar services under similar circumstances. Establishing what that means in each locality will vary and will most likely need to be supported by the expert opinion of another practicing design professional. Read the court decision
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Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP
Ms. Downs may be contacted at mdowns@lauriebrennan.com

“Families First Coronavirus Response Act”: Emergency Paid Leave for Construction Employers with Fewer Than 500 Employees

March 30, 2020 — Sidney Lewis & Alex Glaser, Jones Walker LLP - ConsensusDocs
COVID-19 has already taken a toll on construction projects across the nation. Construction industry participants, including general contractors, now face risks and challenges that are exceedingly difficult to anticipate and plan for. The spread of this virus has and will continue to create new labor force issues and amplify existing ones. On March 18, 2020, the House of Representatives passed H.R. 6021, the “Families First Coronavirus Response Act,” which, contains provisions related to mandatory paid leave for employers with fewer than 500 employees. This legislation and the substantial obligations it imposes apply to the overwhelming number of general contractors in the nation—those with less than 500 full-time employees! The bill mandates up to 80 hours of “emergency paid leave” related to COVID-19, and not just for those who contract the illness. However, contractors with less than 50 employees may seek exemption. Reprinted courtesy of Sidney Lewis, Jones Walker LLP and Alex Glaser, Jones Walker LLP Mr. Lewis may be contacted at slewis@joneswalker.com Mr. Glaser may be contacted at aglaser@joneswalker.com Read the court decision
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Colorado Rejects Bill to Shorten Statute of Repose

May 07, 2015 — Jesse Howard Witt – Acerbic Witt
The House State, Veterans, and Military Affairs committee voted today to postpone Senate Bill 15-091 indefinitely, effectively killing the bill for the 2015 session. As originally drafted, the bill would have given Colorado the shortest statute of repose in the United States. Senate amendments softened the impact of the bill somewhat, but it still would have reduced the amount of time that the owners of single-family homes would have to discover construction defects. Proponents argued that this was necessary because Colorado’s harsh weather conditions make it difficult for construction to last longer than five years. Opponents countered that construction defect laws only provide relief when a builder has violated a code or standard, which is unrelated to the expected lifespan of a product. One of the Representatives noted that states like Alaska have much harsher weather patterns yet allow homeowners to bring claims up to ten years after construction is complete. Another questioned whether the bill would do anything to encourage affordable housing, a topic that has generated substantial media attention in recent months. Read the court decision
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Reprinted courtesy of Jesse Howard Witt, Acerbic Witt
Mr. Witt welcomes comments at www.wittlawfirm.net

Connecticut Supreme Court Finds Faulty Work By Subcontractor Constitutes "Occurrence"

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
The U.S. District Court in Alabama certified a question to the Connecticut Supreme Court: Is damage to a project caused by faulty workmanship "property damage" resulting from an "occurrence"? With some qualification, the Connecticut Supreme Court answered in the affirmative. Capstone Building Corp. v. Am. Motorists Ins. Co., SC 18886 (Conn. June 11, 2013). Captsone Development agreed to coordinate and supervise construction on a building at the University of Conneticut. Capstone Building was the general contractor. UConn secured an OCIP policy from American Motorist Insurance Company ("AMICO"). More than three years after completion, UConn notified the insureds of alleged defects in the project, including elevated levels of carbon monoxide. The source of the leak was the individual hot water heaters in residential units and insufficient draft of exhaust from the heater.Other defects were found during an investigation. The insureds tendered to AMICO. Coverage was denied because the liability arose out of the insureds' own work.The insureds settled with UConn, paying $1 million each. The insureds then sued AMICO in Alabama and the question was certified to the Connecticut Supreme Court. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

Resolving Subcontractor Disputes with Pass-Through Claims and Liquidation Agreements

May 13, 2024 — Stephanie Cooksey - Peckar & Abramson, P.C.
Imagine a project where you are unable to reach final completion due to an unresolved subcontractor claim. If the project owner is responsible for the claim, and both the owner and subcontractor are entrenched in their positions, how would you resolve this dispute? The default option is a three-party lawsuit where the subcontractor sues you in your capacity as general contractor. By denying the claim, you bring the owner into the lawsuit as a liable party to the subcontractor’s claim. This option is efficient from the judicial system’s perspective, as it means one lawsuit instead of two. The subcontractor cannot sue the owner since the two have no contract between them. Thus, the subcontractor’s recourse is limited to suing the contractor. In the three-party lawsuit, you argue that if the subcontractor prevails in its claim against you, the owner is liable. If the owner successfully defends against the claim, the subcontractor takes nothing. Putting judicial economy aside, it may not make economic sense for contractors to have a lawyer involved in litigating a case where they have no skin in the game. Fortunately, there is a better option than the three-party lawsuit on multi-party construction projects. Read the court decision
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Reprinted courtesy of Stephanie Cooksey, Peckar & Abramson, P.C.
Ms. Cooksey may be contacted at scooksey@pecklaw.com

Superintendent’s On-Site Supervision Compensable as Labor Under Miller Act

March 13, 2023 — David Adelstein - Florida Construction Legal Updates
A recent Miller Act payment bond decision out of the District of Columbia Circuit Court of Appeals, U.S. f/u/b/o Civil Construction, LLC v. Hirani Engineering & Land Surveying, PC, 58 F.4th 1250 (D.C. Circ. 2023), dealt with the issue of whether a subcontractor’s superintendent constitutes recoverable “labor” within the meaning of the Miller Act and compensable as a cost under the Miller Act that typically views labor as on-site physical labor. The issue is that the Miller Act covers “[e]very person that has furnished labor or material in carrying out work provided for in a contract.” Civil Construction, supra, at 1253 quoting 40 U.S.C. s. 3133(b)(1). The Miller Act does not define labor. The subcontractor claimed labor includes actual superintending at the job site. The surety disagreed that a superintendent’s presence on a job site constitutes labor as the superintendent has to actually perform physical labor on the job site to constitute compensable labor under the Miller Act. The subcontractor argued its subcontract and the government’s quality control standards required detailed daily reports that verified manpower, equipment, and work performed at the job site. It further claimed its superintendent had to continuously supervise and inspect construction activities on-site: “[the] superintendent had to be on-site to account for, among other things, hours worked by crew members, usage and standby hours for each piece of equipment, materials delivered, weather throughout the day, and all work performed. These on-site responsibilities reflected the government’s quality control standards, under which the superintendent as ‘the most senior site manager at the project, is responsible for the overall construction activities at the site…includ[ing] all quality, workmanship, and production of crews and equipment.” Civil Construction, supra, at 1253-54. 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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