Cambridge Massachusetts Building Expert Directory

Useful Life: A Valuable Theory for Reducing Damages

March 29, 2017 — Brooke E. Beebe, Esq. - Florida Construction Law News
The situation is one all too familiar to construction defect litigants. A homeowner contracts with a roofing contractor to install a new roof with a life expectancy of ten years.[1] After only five years, the homeowner brings a claim for construction defects in the roof alleging that the roof requires complete replacement due to water intrusion. The homeowner seeks damages for the full replacement cost of the roof. However, under a “useful life” theory, the homeowner would not be entitled to damages for the full amount of the replacement cost. Instead, the homeowner would be entitled to one-half of the cost of the replacement roof, taking into account the fact that he or she had been deprived of only five, rather than ten, years of use. “Useful life” is best understood as the expected length of time that a newly built construction element can be reasonably anticipated to last, subject to routine maintenance and ordinary wear and tear. The “useful life” theory holds that granting the homeowner damages for the full replacement cost of the roof would result in unjust enrichment to the homeowner, who had contracted for a roof with a ten-year, rather than a fifteen-year, useful life. Read the court decision
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Reprinted courtesy of Brooke E. Beebe, Cole, Scott & Kissane, P.A.
Ms. Beebe may be contacted at brooke.beebe@csklegal.com

South Carolina Couple Must Arbitrate Construction Defect Claim

June 28, 2013 — CDJ STAFF
The South Carolina Court of Appeals has rejected a claim by Sun City property owners that they were not bound by the arbitration clause in their purchase agreement. Roger and Mary Jo Carlson brought the claim against Del Webb Communities and Pulte Homes. About 140 homeowners are alleging problems in the community. According to the court, the Carlsons will have to go through arbitration with the companies over the alleged stucco defects to their home. Read the court decision
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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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Someone Who Hires an Independent Contractor May Still Be Liable, But Not in This Case

April 18, 2023 — Katherine Dempsey - The Subrogation Strategist
In Allstate Veh. & Prop. Ins. Co. v. Glitz Constr. Corp., 2023 N.Y. App. Div. LEXIS 1180, 2023 NY Slip Op 01171, the Supreme Court of New York, Appellate Division, Second Department (Appellate Court), considered whether a contractor could be found liable for its subcontractor’s alleged negligence in causing injury to a homeowner’s property. The homeowner’s insurer, as subrogee of the homeowner, sought to recover damages from the contractor despite an allegation that the subcontractor – an independent contractor – caused the injury to the homeowner’s property. Finding that there was no evidence that any of the exceptions to the non-liability rule related to hiring independent contractors applied, the Appellate Court affirmed the lower court’s decision granting judgment in favor of the contractor. In this case, the homeowner hired the contractor (defendant) to convert her garage area into a bedroom and an office. The defendant later hired a subcontractor to perform the electrical rough-in work. At trial, the homeowner’s insurer (plaintiff) presented evidence that the subcontractor, who damaged an existing wire with a drill bit, caused an electrical failure that resulted in a fire. The defendant argued that it could not be held liable for the subcontractor’s alleged negligence because the subcontractor was an independent contractor and, on appeal, the Appellate Court agreed. Read the court decision
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Reprinted courtesy of Katherine Dempsey, White and Williams LLP
Ms. Dempsey may be contacted at dempseyk@whiteandwilliams.com

Texas EIFS Case May Have Future Implications for Construction Defects

October 02, 2013 — CDJ STAFF
Lennar Homes addressed a problem with EIFS in homes built in Texas in the 1990s by replacing every roof they had built. Some of those homes had problems with leaks, rotting, or termites, but other roofs hadn’t suffered any problems. Lennar’s insurers initially refused coverage. Lennar managed to settle with all but one, Markel American Insurance. Their dispute formed the case Lennar Corp. v. Markel American Insurance Co. This was first tried before a jury and eventually appealed to the Texas Supreme Court. Brian S. Martin of Thompson Coe Cousins & Irons LLP discusses this case at Insurance Journal. Markel’s claim was that under the policy language, Lennar could not make voluntary payments without getting Markel’s consent, which they did not. But the Texas Supreme Court disagreed, determining that Lennar took, as Mr. Martin notes, “a reasonable approach to a serious problem.” Markel also made the claim that the whole amount of the damages was not covered by the policy, as they did not view the policy as covering the cost of determining the extent of the damage. The Court disagreed, noting that “under no reasonable construction of the phrase can the cost of finding EIFS property damage in order to repair it not to be considered ‘because of the damage.’” Mr. Martin concludes by calling the Texas Supreme Court decision “a frontal assault on several critical provisions of liability policies that will assuredly lead to further litigation.” He also notes that the decision “may indicate a shift in the Court’s approach in insurance cases to a more result-oriented jurisprudence.” Read the court decision
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Insurer Entitled to Reimbursement of Defense Costs Under Unjust Enrichment Theory

May 04, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court for the district of Hawaii determined that the insurer could recover defense costs from an additional insured consistent with its Reservation of Rights letter under an unjust enrichment theory. Giga, Inc. v. Kiewit Infrastructure W. Co., 2020 U.S. Dist. LEXIS 10151 (D. Haw. Jan. 22, 2020). This case was related fall-out from the Arthur case. Arthur v. Dept. of Hawaiian Homelands, 185 Haw. 149 (Haw. Ct. App. 2015). A prior post on the case is here. In Arthur, a resident, Mona Arthur, of the Kalawahine Streamside Housing Development, was killed when she apparently slipped and fell from a hillside adjacent to the project. She was on the hillside tending to her garden there. At the bottom of the hill was a two foot fence in front of a drainage ditch, where Mona allegedly hit her head. Mona's husband, William Arthur, sued a variety of defendants including the land owner, designer, developer, civil engineer and others. William alleged the defendants were negligent in the design, construction and supervision of the construction of the hillside area. 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

New York’s 2022 Comprehensive Insurance Disclosure Act: Significant Amendments to the C.P.L.R.

January 17, 2022 — Ellen H. Greiper & Kristen Carroll - Lewis Brisbois
New York, N.Y. (January 4, 2022) - On December 31, 2021, New York State Governor Hochul signed into law the Comprehensive Insurance Disclosure Act. The alleged justification for the act was to reduce the use of “delaying tactics” by compelling disclosure of the complete primary, excess, and umbrella policies implicated by the claim. These amendments will be unduly onerous on both carriers and defense counsel—for a multitude of reasons. It imposes an obligation on the insurer to immediately identify excess policies, eroding policies, and other information or contracts that affect the available coverage. Reprinted courtesy of Ellen H. Greiper, Lewis Brisbois and Kristen Carroll, Lewis Brisbois Ms. Greiper may be contacted at Ellen.Greiper@lewisbrisbois.com Ms. Carroll may be contacted at Kristen.Carroll@lewisbrisbois.com Read the court decision
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Autovol’s Affordable Housing Project with Robotic Automation

February 15, 2021 — Aarni Heiskanen - AEC Business
Just over two years since breaking ground, Autovol is now using automation in new ways as it nears completion of its first major affordable housing project. The project, Virginia Street Studios, will make high-quality apartment homes more affordable to seniors in San Jose, one of America’s 10 most expensive cities. The 400,000 square foot Autovol factory has now successfully deployed its unique combination of construction trades and robotic automation. Autovol has hired more than 100 employees, which the company calls Solutioneers. Led by CEO Rick Murdock and co-developed by The Pacific Companies, Autovol is pioneering a new kind of modular construction. Robotics lead into the future of housing “Automation and robotics will lead the world into the future of housing,” Murdock said. “What we’re doing hasn’t been attempted before. Our investors and Solutioneers leaned in with lots of confidence, and now we’re seeing great results that prove they were right.” 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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