Cambridge Massachusetts Building Expert Directory

Hawaii Construction Defect Law Increased Confusion

August 27, 2013 — CDJ STAFF
Hawaii’s Act 83 put into the law that in determining if a construction defect was due to an occurrence, the courts needed to ignore any case law that arose after the insurance policy was taken out. The hope, according to Bibeka Shrestha, writing at Law360, was to provide certainty to builders. The effect, however, “further muddled the litigation landscape.” Carl Shapiro said of the Hawaii legislature that “instead of solving the problem, they’ve created an even bigger miss.” Tred Eyerly, an insurance attorney says that the state “needs a decision from the Hawaii Supreme Court.” One result is that now the state court and the federal courts have different views on how to look at prior cases. The state courts are holding that “the uncertainly should be resolved in favor of the policyholder,” while the federal courts “pointed to earlier case law that nixed coverage for these types of claims. The legislature seems unlikely to resolve this confusion on its own. One legislative liaison said that “nobody knew how to pass a law saying ‘you will grant coverage.’” Brian Yamane also told Law360 that “there has been no attempt by anybody to introducte legislation to amend the law.” Read the court decision
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Reprinted courtesy of

Dispute Waged Over Design of San Francisco Subway Job

July 30, 2019 — Erica Berardi - Engineering News-Record
Contractor Tutor Perini Corp. is clashing with the San Francisco Municipal Transportation Agency over what the firm says are alleged design flaws that may push past December the completion of the already-delayed $1.6-billion Central Subway Project. Read the court decision
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Reprinted courtesy of Erica Berardi, ENR
Ms. Berardi may be contacted at BerardiE@enr.com

Michigan: Identifying and Exploiting the "Queen Exception" to No-Fault Subrogation

May 13, 2014 — Robert M. Caplan – White and Williams LLP
In Michigan, an employee’s entitlement to compensation for injuries sustained in a motor vehicle accident is governed by both the Workers’ Disability Compensation Act of 1969, MICH. COMP. LAWS ANN. § 418.801 et seq., and Chapter 31 of The Insurance Code of 1956, MICH. COMP. LAWS ANN. § 500.3101 et seq., commonly referred to as the “no-fault act.” Polkosnik v. United Canada Ins. Co., 421 N.W.2d 241, 242 (Mich. App. 1988). PIP1 benefits payable arising from a motor vehicle accident in Michigan include, principally, (1) medical benefits unlimited in amount and duration, and (2) 85% of lost wages for up to three years. See DEPARTMENT OF INSURANCE AND FINANCIAL SERVICES, Brief Explanation of Michigan No-Fault Insurance. As of October 2013, lost wages are capped at $5,282 per month. Id. Such benefits constitute an injured worker’s “economic loss.” See generally Wood v. Auto-Owners Ins. Co., 668 N.W.2d 353, 355 (Mich. 2003). Michigan’s no-fault legislation is no different than other no-fault legislation in regard to its purpose: The automobile insurer pays without any right of reimbursement out of any third party tort recovery. Sibley v. Detroit Auto. Inter-Ins. Exch., 427 N.W.2d 528, 530 (Mich. 1988). Moreover, just like in New York, for example, “where benefits are provided from other sources pursuant to state or federal law, the amount paid by the other source reduces the automobile insurer’s responsibility.” Id. at 530. Read the court decision
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Reprinted courtesy of Robert M. Caplan, White and Williams LLP
Mr. Caplan may be contacted at caplanr@whiteandwilliams.com

SCOTUS, Having Received Views of Solicitor General, Will Decide Whether CWA Regulates Indirect Discharge of Pollutants Into Navigable Water Via Groundwater

April 17, 2019 — Anthony B. Cavender - Gravel2Gavel
Prior to deciding whether to review an important February 1, 2018, U.S. Court of Appeals for the Ninth Circuit decision involving the jurisdictional reach of the Clean Water Act (CWA), Hawai’i Wildlife Fund, et al., v. County of Maui, the Supreme Court asked the Solicitor General for the views of the U.S. on the holdings of this case and the April 12, 2018 U.S. Court of Appeals for the Fourth Circuit decision, Upstate Forever, et al., v. Kinder Morgan Energy Partners, L.P., et al. On February 19, the Supreme Court confirmed that certiorari was granted to Question 1 presented by the Petition,

Whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater. (33 U.S.C. § 1362 (12)

In County of Maui , the Ninth Circuit held that indirect discharges to navigable waters through groundwater may be subject to the Environmental Protection Agency’s (EPA) CWA the National Pollutant Discharge Elimination System (NPDES) permitting authority, and in Kinder Morgan, the Fourth Circuit held that such an indirect discharge may be subject to regulation under the CWA when there is a direct hydrological connection between the discharge into groundwater and the direct discharge into navigable, surface waters. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

Short-Term Rental Legislation & Litigation On the Way!

November 18, 2019 — Patrick J. Paul - Snell & Wilmer Real Estate Litigation Blog
The advent of the shared economy in the real estate context has provided homeowners and investors alike with expanded opportunities to generate revenue from the use of their real estate. Airbnb and VRBO are two of the most popular companies facilitating short-term rental availability. The rapid growth in this shared real estate economy has served as a disruptor of sorts to the traditional hotel and hospitality industry, causing that industry to revisit its own models in order to better compete. The popularity of short-term rental use, however, has created a whole new set of problems about which property owners, state and local governments, renters, and those impacted by the explosion of short-term rentals should be aware. Among other things, without more, most traditional homeowners’ policies will not cover the insured property’s use for commercial purposes – a problem similar to the early rideshare providers. Full and part-time resident owners who previously enjoyed a greater certainty with respect to their neighbors are today frustrated by the revolving door of vacationers, revelers, wedding attendees and similar nontraditional uses of neighborhood residential property. Read the court decision
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Reprinted courtesy of Patrick J. Paul, Snell & Wilmer
Mr. Paul may be contacted at ppaul@swlaw.com

Nine ACS Lawyers Recognized as Super Lawyers – Two Recognized as Rising Stars

August 26, 2024 — Ahlers Cressman & Sleight PLLC
Going outside the norm of our blogs, which usually discuss construction related issues, Ahlers, Cressman, & Sleight is pleased to announce that nine members of our firm have been selected to the 2024 Washington Super Lawyers list. Each year, a rigorous process that involves a nomination by peers and a third-party verification of honors, awards, verdicts, settlements, and other criteria relating to their work as an attorney, aims to select no more than five percent of the lawyers in Washington state from no more than seventy practice areas for this distinction. As mentioned, the first step in the process is to be evaluated on their work as an attorney, next candidates are evaluated by their peers and given ratings based on the information known about their work. Finally, candidates are grouped into four firm-size categories and final selections are made. The grouping process is done so that candidates are compared fairly to their peers by firm size, eliminating the potential unfairness that comes with comparing large and small firm outcomes and attorney practices. The Rising Star list involves an even narrower criteria than the Super Lawyers list. The initial process is the same, however, candidates for the Rising Stars list must be under the age of forty or have less than ten years of experience. For this category less the two and a half percent of lawyers in Washington are selected, making this quite a feat for those who have accomplished the honor. Read the court decision
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Reprinted courtesy of Ahlers Cressman & Sleight PLLC

Contractual Waiver of Consequential Damages

January 02, 2019 — David Adelstein - Florida Construction Legal Updates
Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive. But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Did New York Zero Tolerance Campaign Improve Jobsite Safety?

December 13, 2021 — Neil Flynn - Construction Executive
Construction work is one of the most dangerous jobs in America, accounting for 19% of all workplace deaths in 2019. In New York City, that number is almost 50% higher, with construction accidents accounting for a quarter of all workplace deaths. One of the most positive developments in this area, despite the presence of COVID-19, has been the recent implementation of the “Zero Tolerance” campaign by the New York City’s Department of Buildings. The goal of the DOB’s latest construction safety campaign was to reduce the number of building site injuries and fatalities by implementing a zero-tolerance standard. While it is too premature to measure the program’s efficiency, a preliminary analysis of the first three months’ results appear to be nothing short of impressive. Reprinted courtesy of Neil Flynn, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Flynn may be contacted at nf@plattalaw.com

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES