Cambridge Massachusetts Building Expert Directory

Don’t Overlook Leading Edge Hazards

May 20, 2019 — Baxter Byrd - Construction Executive
Leading edge hazards are often misunderstood and overlooked on today’s highly visible jobsites. Evidence is readily available via images shared on construction-related social media accounts. In the context of people showing pride for the hard work they do or the extreme conditions under which they work, posts offer glimpses into the methods employed to mitigate fall hazards. Alarmingly, many of these methods do not adhere to industry-accepted standards, especially in the case of leading edge applications. Mincing Words The definition of “leading edge” itself has undergone somewhat of a transformation since its introduction by OSHA to its current use by ANSI in the Z359.14-2014 “Safety Requirements for Self-Retracting Devices for Personal Fall Arrest and Rescue Systems” standard. OSHA defines a leading edge as an “unprotected side or edge during periods when it is actively or continuously under construction,” giving many the impression that a leading edge was a temporary condition found only during the construction of a structure. Reprinted courtesy of Baxter Byrd, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Byrd may be contacted at info@puresafetygroup.com

Is There Direct Physical Loss Under A Property Policy When COVID-19 is Present?

April 06, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Most property policies provide coverage for property damage only when there is "direct physical loss" to covered property. Early indications are that COVID-19 remains on surfaces. The duration can last from a few hours to three weeks, depending on the type of surface material. If an employee is infected and the store or restaurant must closed because the virus may rest on surfaces within the building, is there direct physical loss, even though the building structure itself is unharmed? To answer this question, cases from jurisdictions outside Hawaii may provide guidance. In a case from Louisiana, the homeowner had to move out of her home when excessive levels of organic lead were discovered in the kitchen, living room, master bedroom, and attic. Widder v. La. Citizens Prop. Ins. Corp., 82 So. 3d 294 (La. Ct. App. 2011). The insurer denied coverage because there was no direct physical loss. The trial court agreed; since the home was still intact, no direct physical loss had occurred, so there was no coverage under the policy. The appellate court reversed. It compared the presence of inorganic lead in the home to cases that found a direct physical loss from the existence of Chinese drywall, from which gaseous fumes were released, rendering the home unusable or uninhabitable. Physical damage was not necessary. What if smoke from a nearby wildfire fills an outdoor theater, forcing cancellation of performances and loss of business income? This was the situation in Oregon Shakespeare Festival Ass'n v. Great Am. Inc. Co., 2016 U.S. DIst. LEXIS 74450 (D. Ore. Jun 7, 2016). Wildfires in the area caused smoke, soot, and ash to accumulate on the surface of seats and concrete ground of the open-air theater. The air quality was poor, but no federal, state or local agency ordered cancellation of the performances. Further, the theater did not suffer any permanent or structural damage to its property. The insurer denied coverage, contending that the loss or damage must be structural to the building itself. After all, the smoke in the air at the theater did not require any repairs to the structure of the property. The court disagreed. The theater sustained "physical loss or damage to property" when the wildfire smoke infiltrated the theater and rendered it unusable for its intended purpose. The decision in Oregon Shakespeare Festival was eventually vacated by a joint stipulation of the parties. Oregon Shakespeare Festival Ass'n v. Great Am. Ins.Co., 2017 U.S. Dist. LEXIS 33208 (D. Ore. March 6, 2017), but the reasoning is still sound. 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

As Recovery Continues, Home Improvement Stores Make Sales

August 27, 2013 — CDJ STAFF
Need another sign of the housing recovery? Lowe’s stock price is up. Bloomberg News reports that the home-improvement retailer rose by 88 cents a share in the last quarter. Analysts had predicted gains of 79 cents a share, and the same quarter last year saw profits of 64 cents a share. The increase in profits come from more purchases and higher spending per purchase. While Lowe’s negotiated some better prices with vendors and dropped some items that weren’t selling, none of the profits came from staff reduction; the retailer actually increased staffing. Home Depot, the largest such chain (Lowe’s is number 2), also saw profits that exceeded analysts’ projections. They, too, have decided to focus on assisting customers. Their increase in profits was attributed to greater spending by contractors and homeowners. Read the court decision
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5 Ways Equipment Financing is Empowering Small Construction Businesses

August 24, 2017 — Duane Craig - Construction Informer
Small construction businesses can often get 100% equipment financing, eliminating the down payment, and freeing up cash, according to the Equipment Leasing and Finance Association (ELFA). Most small businesses need equipment in order to operate and grow, and each business must decide on an acquisition strategy that is right for it. But, a majority of businesses turn to equipment leasing and financing so they can take advantage of a range of benefits. Read the court decision
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Reprinted courtesy of Duane Craig, Construction Informer
Mr. Craig may be contacted at dtcraig@constructioninformer.com

Point Taken: The UK Supreme Court Finally Confirms the General Law of Liquidated Damages (LDs)

April 04, 2022 — Vincent C. Zabielski & Julia Kalinina Belcher - Gravel2Gavel Construction & Real Estate Law Blog
In a long-awaited decision which overturned the Court of Appeal’s ruling in the Triple Point Technology vs PTT Public Company case, the UK Supreme Court confirmed the general law of LDs, which is that—absent clear words to the contrary—they accrue up to the date of termination of a contract regardless of whether the contractor completes the work; after that, general damages are recoverable. This approach was held to reflect “commercial reality and the accepted function of liquidated damages.” Although the contract in question was not a construction contract, the decision is equally relevant in the construction sphere. By way of reminder, Triple Point failed to complete the works under Phase 1 of a contract for the design, installation, maintenance and licencing of software. Despite agreeing a revised project plan, PTT gave notice to terminate. Reprinted courtesy of Vincent C. Zabielski, Pillsbury and Julia Kalinina Belcher, Pillsbury Mr. Zabielski may be contacted at vincent.zabielski@pillsburylaw.com Ms. Belcher may be contacted at julia.belcher@pillsburylaw.com Read the court decision
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The Future Looks Bright for Construction in 2015

January 21, 2015 — Craig Martin – Construction Contractor Advisor
Associated Builders and Contractors’ Construction Executive has painted a rosy outlook for the upcoming year. ABC’s Chief Economist predicts a 7.4 percent increase in total nonresidential spending for 2015. This is great news for a construction industry that has climbing out of the recession through fits and starts over the last several months. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Business Risk Exclusions Do Not Preclude Coverage

November 13, 2013 — Tred Eyerly — Insurance Law Hawaii
The court rejected the insurer's arguments that the business risk exclusions barred coverage for a contractor. Gen. Cas. Co. of Wisconsin v. Five Star Bldg. Corp., 2013 U.S. Dist. LEXIS 134122 (D. Mass. Sept. 19, 2013). Five Star was hired by the University of Massachusetts to upgrade the ventilation (HVAC) system on a portion of a building. The large majority of the work involved work in the interior of the building, but a small portion required installation of duct work and supports on top of the roof of the complex. Five Star also penetrated the roof at numerous locations to install supports for duct work and other rooftop structures for the ventilation system. Other subcontractors then secured supports to the concrete roof deck and installed permanent patches where Five Star had penetrated the roofing system. On same days, Five Star could not accomplish the process in a single day after penetrating the roof. It would install temporary patches until the next day. This was the only work on the roof performed by Five Star. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

Georgia Federal Court Says Fact Questions Exist As To Whether Nitrogen Is An “Irritant” or “Contaminant” As Used in Pollution Exclusion

May 20, 2019 — Lawrence J. Bracken II, Michael S. Levine & Alexander D. Russo - Hunton Andrews Kurth
The Southern District of Georgia recently ruled that Evanston Insurance Company is not entitled to summary judgment on whether its policies’ pollution exclusion bars coverage for the release of nitrogen into a warehouse. The case stems from an incident at Xytex Tissue Services, LLC’s warehouse, where Xytex stored biological material at low temperatures. Xytex used an on-site “liquid nitrogen delivery system” to keep the material properly cooled. This system releases liquid nitrogen, which would vaporize into nitrogen gas and cool the biological material. On February 5, 2017, a Xytex employee, Deputy Greg Meagher, entered the warehouse to investigate activated motion detectors and burglar alarms. Deputy Meagher was overcome by nitrogen gas and died as a result. Following Deputy Meagher’s death, his heirs filed suit against Xytex and other defendants. Evanston denied coverage based on the pollution exclusion in its policy. Evanston then brought a declaratory judgment action to confirm its coverage position. In denying Evanston’s summary judgment motion, the Southern District of Georgia reasoned that the type of injury sustained is essential in analyzing whether the pollution exclusion applies. Specifically, Xytex argued, and the court agreed, that the underlying lawsuit alleged that the bodily injury was caused by a lack of oxygen, not exposure to nitrogen. The court also distinguished prior decisions, explaining that injury caused by a lack of oxygen is not a contamination or irritation of the body in the same way as injury resulting from exposure to carbon monoxide or lead. The court also found that Xytex “reasonably expected that liability related to a nitrogen leak would be insured.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Lawrence J. Bracken II, Michael S. Levine and Alexander D. Russo Mr. Bracken may be contacted at lbracken@HuntonAK.com Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Russo may be contacted at arusso@HuntonAK.com Read the court decision
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