Cambridge Massachusetts Building Expert Directory

Construction Defect or Just Punch List?

December 11, 2013 — CDJ STAFF
A couple in Dickinson, North Dakota have put big, green “buyer beware” signs on their home. They’re not planning on selling, but just trying to warn prospective neighbors of the problems they’ve had since moving into their new home. Andrea Thermes said her problems included leaking windows and uneven floors. “I absolutely love my house,” she said. “If we didn’t have the issues, I would be the happiest girl in the world.” One problem was a leaking picture window in her living room. The builder replaced it, but the first window that arrived was the wrong size. The new home is still under a warranty and the builder has been fixing issues as they arise. “They are upset with some of the problems they have had,” said William Henry, president of B-Dev, the builder of the home. Since Ms. Thermes’s window wasn’t repaired in time for Thanksgiving, Mr. Henry sent wine and beer to her home. “Not that that makes up for not having their window, but we’re trying to make this work and trying to appease them,” he said. But Mr. Henry said that some of the problems “are not really material defects,” characterizing them as “punch-list and warranty items.” Read the court decision
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The Clock is Ticking: Construction Delays and Liquidated Damages

September 18, 2023 — Tiffany Harrod - ConsensusDocs
With the on-going shortage of construction workers in the industry and other factors ranging from weather to procurement problems, the threat of project delay is real. When a contract contains a liquidated damages clause for assessing project delays, real financial consequences for contractors can result. Courts have long allowed parties to apportion contractual risks as they deem appropriate especially in the commercial context where the parties are considered to be sophisticated even if their bargaining power is not equal. Liquidated damage provisions such as those for delay that are found in construction contracts are not unusual but they must be crafted in such a way as to be enforceable and not violate public policy. A liquidated damage clause in a construction contract is a customary way for the parties to deal with the possibility of delay in the completion of a project and the potential losses flowing from the delay.[1] In their most basic form, the party in breach, which is more often than not the contractor, is obligated to pay the non-breaching party, usually the project owner, some fixed sum of money for the period that exceeds the designated completion date that was agreed upon in advance and memorialized in the contract. (It is after all no secret that these provisions are primarily for the owner’s benefit.) The non-breaching party is then compensated for losses associated with the delay without the time and expense of having to prove in either a civil suit or an arbitration proceeding what the actual damages are. This option is particularly attractive to project owners because the liquidated damages assessment can simply be withheld from payments owed to the contractor once the agreed-upon completion date has been passed. Read the court decision
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Reprinted courtesy of Tiffany Harrod, Peckar & Abramson
Ms. Harrod may be contacted at tharrod@pecklaw.com

What is Bad Faith?

April 04, 2022 — Stacy M. Manobianca - Saxe Doernberger & Vita, P.C.
As a policyholder, you may have heard the term “bad faith” in the context of litigation against your insurer. Bad faith in the insurance context is a catch-all term for a broad category of claims that can be brought against your insurer. Bad faith claims are common in insurance coverage litigation, and they can be a powerful tool in a policyholder’s arsenal. This post will serve as an introduction to some basic concepts surrounding bad faith litigation.

Bad Faith Defined:

Statutory vs. Common Law Bad Faith Claims
Breach of Contract vs. Tort Bad Faith Claims
Substantive vs. Procedural Bad Faith Claims

Best Practices Throughout the Claims Process:
Involve an Experienced Coverage Attorney
Conclusion

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Reprinted courtesy of Stacy M. Manobianca, Saxe Doernberger & Vita, P.C.
Ms. Manobianca may be contacted at SManobianca@sdvlaw.com

Unlicensed Contractors Nabbed in Sting Operation

September 09, 2011 — CDJ STAFF

The California State License Board charged sixteen people in the Fresno area with accepting contracting jobs without licenses. The Statewide Investigative Fraud Team of the CSLB set up a sting operation at a home in Clovis, California seeking bids on tree service, painting, and general contracting services. Those who bid for jobs at more than $500 are required under California law to be licensed. Unlicensed contractors can only work on jobs with a cost to the homeowner of less than $500 and must inform the homeowner that they are not licensed.

In addition to citing contractors for not possessing appropriate licenses, the CSLB also cited contractors for failure to carry workers compensation insurance and illegal advertising. Further, California law limits down payments to the lesser of ten percent or $1,000. Two contractors were cited for requesting excessive down payments.

One contractor, an unlicensed tree service contractor, had been cited previously in a sting operation. He failed to show up for his court date.

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The Fair Share Act Impacts the Strategic Planning of a Jury Trial

May 10, 2017 — Andrew Ralston, Jr. - White and Williams LLP
Complex questions surrounding the application of the Fair Share Act, which modified Pennsylvania’s common law “joint and several” liability law, are being taken up by courts in the Commonwealth with increasing frequency. Given the practical consequences of the differences in application between the Act and “joint and several” liability, additional litigation over the application of the Fair Share Act to real world factual situations will undoubtedly arise. Recent Caselaw Currently, in Roverano v. PECO Energy, the Superior Court of Pennsylvania is considering the question of whether, under the Fair Share Act, the jury, or else the trial judge, is responsible for the task of apportioning liability to multiple defendants in a strict liability case. In Roverano – an asbestos case -- a jury awarded the plaintiff $6.3 million. On the verdict sheet were eight joint tortfeasor co-defendants. The judge did not allow the jury to apportion liability to each defendant and, as a result, no guidance was provided by the jury about how much each defendant was to contribute to the award. Instead, the judge merely divided the jury’s award by eight (the number of defendants in the case) and apportioned to each defendant one-eighth of the verdict amount. Read the court decision
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Reprinted courtesy of Andrew Ralston, Jr., White and Williams LLP
Mr. Ralston may be contacted at ralstona@whiteandwilliams.com

Colorado House Bill 17-1279 – A Misguided Attempt at Construction Defect Reform

March 29, 2017 — David McClain - Colorado Construction Litigation
On March 17th, House Bill 17-1279, concerning the requirement that a unit owners’ association obtain approval through a vote of unit owners before filing a construction defect action, was introduced and assigned to the House State, Veterans, and Military Affairs Committee. The bill is currently scheduled for its first committee hearing on March 29th, at 1:30 in the afternoon. While, on its face, this appears to be a step in the right direction towards instituting “informed consent” before an HOA can file a construction defect action, the bill actually restricts the ability of developer to include more stringent requirements in the declaration of covenants, conditions, and restrictions for an association, thereby lowing the threshold of “consent” required to institute an action. House Bill 17-1279 would amend C.R.S. § 38-33.3-303.5 to require an association’s executive board to mail or deliver written notice of the anticipated commencement of a construction defect action to each unit owner and to call a meeting of the unit owners to consider whether to bring such an action. Any construction professional against which a claim may attend the unit owners’ meeting and have an opportunity to address the unit owners and may include an offer to remedy any defect in accordance with C.R.S. § 13-20-803.5(3). The conclusion of the meeting would initiate a 120-day voting period, during which period the running of any applicable statutes of limitation or repose would be tolled. Pursuant to this bill, an executive board may only institute a construction defect action only if authorized by a simple majority of the unit owners, not including: 1) any unit owned by any construction professional, or affiliate of a construction professional, involved in the design, construction, or repair of any portion of the project; 2) any unit owned by a banking institution; 3) any unit owned in which no defects are alleged to exist, and/or 4) any unit owned by an individual deemed “nonresponsive.” Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Ahlers & Cressman Presents a Brief History of Liens

August 20, 2014 — Beverley BevenFlorez-CDJ STAFF
Brad Westmoreland on Ahlers & Cressman PLLC’s blog, presented the history of liens in the U.S., going back to 1789. In fact, the lien was created in response to the need of swift and extensive construction in Washington D.C. “Although it had an abundance of land at the time, America was short on labor and capital,” Westmoreland wrote. “Knowing the state of things, builders were hesitant to provide labor and materials without guarantees that owners would be able to pay.” According to the Ahlers & Cressman PLLC blog, Thomas Jefferson solved the issue by urging “the Legislature of Maryland to pass a law giving builders ‘a lien upon newly created values of [their] labors.’ The new law would provide builders with the assurance that contracts would not result in a total loss should the owners fail to pay.” Read the court decision
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Surplus Lines Carrier Can Force Arbitration in Louisiana Despite Statute Limiting Arbitration

February 12, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the surplus lines insurer's motion to compel arbitration despite a Louisiana statute barring policies from depriving courts of jurisdiction in cases against insurers. Queens Beauty Supply, LLC v. Indep.Specialty Ins. Co., 2023 U.S. Dist. LEXIS 195372 (E.D. La. Oct. 31, 2023). Hurricane Ida damaged property leased by Queens. Queens filed suit against its insurer, Independent Specialty Insurance Company (ISIC) for breath of contract and bad faith for failing to pay the full amount Queens contends it was owed for the damage. ISIC moved to compel arbitration. Queens argued that ISIC waived its right to enforce the policy's arbitration clause by its actions before the court, including failing to opt-out of the settlement program adopted for Hurricane Ida cases. The court disagreed, ISIC had taken no overt act that evidenced a desire to resolve the instant dispute through litigation rather than arbitration. ISIC asserted as an affirmative defense that Queens's claims were barred by the arbitration clause in the policy. ISIC then participated in the settlement program for Hurricane Ida cases, which evidences a desire to settle the dispute, not to resolve it by litigation. Therefore, ISIC had not waived its right to arbitrate. 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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