Cambridge Massachusetts Building Expert Directory

Musk’s Cousins Battle Utilities to Make Solar Rooftops Cheap

April 15, 2015 — John Lippert and Christopher Martin – Bloomberg
In September 2013, Hawaiian Electric Co. told thousands of customers they couldn’t connect their new solar panels to its distribution grid. In some neighborhoods, HECO said, its system couldn’t absorb any more unused energy from home solar arrays. The moratorium, which lasted 13 months, made Hawaii a central battleground in the effort by utilities to control the rapid growth of independent solar companies across the U.S. And it was a big deal to people such as Robert Gould, a retired Northwest Airlines pilot living near Honolulu. He’d just paid $53,000 to have solar panels installed. Gould and other customers protested loudly to state officials. They finally got help from Lyndon Rive, the CEO of SolarCity. The San Mateo, California, company is the biggest installer of rooftop solar panels in the U.S. and has 10,000 Hawaiian customers, Bloomberg Markets magazine reports in its May issue. Rive studied the situation and zeroed in on a key fact: HECO had never directly measured how much solar its grid could handle, relying on computer simulations instead. “Because the technology is brand-new, no one had ever done this in the field before,” says Colton Ching, HECO’s vice president for energy delivery. Reprinted courtesy of John Lippert, Bloomberg and Christopher Martin, Bloomberg Read the court decision
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AB5 Construction Exemption – A Checklist to Avoid Application of AB5’s Three-Part Test

February 18, 2020 — Blake Dillion - Payne & Fears LLP
Construction companies have a unique opportunity to avoid the application of the restrictive new independent contractors law that took effect this year. This article provides a checklist that will help construction companies determine whether their relationships with subcontractors qualify for this exemption. California’s Assembly Bill 5 (“AB5”), which went into effect Jan. 1, 2020, enacts into a statute last year’s California Supreme Court decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and the Court’s three-part standard (the “ABC test”) for determining whether a worker may be classified as an employee or an independent contractor. Certain professions and industries are potentially exempt from this standard, including the construction industry. The ABC test does not apply to the relationship between a contractor and an individual performing work pursuant to a subcontractor in the construction industry, if certain criteria are met. In order for the “construction exemption” to apply, the contractor must demonstrate that all of the following criteria are satisfied.

The subcontract is in writing;
The subcontractor is licensed by the Contractors State License Board and the work is within the scope of that license;
If the subcontractor is domiciled in a jurisdiction that requires the subcontractor to have a business license or business tax registration, the subcontractor has the required business license or business tax registration;
The subcontractor maintains a business location that is separate from the business or work location of the contractor;
The subcontractor has the authority to hire and to fire other persons to provide or assist in providing the services;
The subcontractor assumes financial responsibility for errors or omissions in labor or services as evidenced by insurance, legally authorized indemnity obligations, performance bonds, or warranties relating to the labor or services being provided; and
The subcontractor is customarily engaged in an independently established business of the same nature as that involved in the work performed.

The contractor must be able to establish each of the above criteria for the construction exemption to apply. If the contractor is successful, the long standing multi-factor test for determining independent contractor vs. employee status as described in S.G. Borello & Sons, Inc. v. Dep’t of Industrial Relations, 48 Cal. 3d 341 (1989) will apply. You should review your processes and procedures for engaging subcontractors to ensure that you can satisfy the above criteria. If you have questions about the application of AB5, the construction exemption, or the Borello factors, you should speak with an attorney. Read the court decision
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Reprinted courtesy of Blake A. Dillion, Payne & Fears
Mr. Dillion may be contacted at bad@paynefears.com

Improper Classification Under Davis Bacon Can Be Costly

April 01, 2015 — Craig Martin – Construction Contractor Advisor
The Department of Labor announced late last year that it had recovered nearly $2 million in back wages and fringe benefits from a subcontractor that provided constructions services at the federally funded Crescent Dunes Solar Energy Project in the Nevada desert. This was not a failure to pay Davis Bacon wages, but a failure to properly classify laborers on the project. The DOL determined that the laborers should have been paid as skilled trade steelworkers, not general laborers. As the subcontractor found out, this proved very costly. The subcontractor submitted its bid, classifying its laborers as general laborers and designating their wage at $30.00. The laborers were to assemble billboard sized mirrors on the project. There is some indication that the Department of Energy agreed with the classification, even though the Department of Labor has the final say on classifications. The Department of Labor’s investigation revealed that the laborers routinely performed duties in skilled trades, such as ironworking, electrical work, painting or bridge crane operation. Based on these activities, the Department of Labor concluded that the laborers should have been paid $60.00 per hour plus fringe benefits. 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

Yet ANOTHER Reminder to Always Respond

July 11, 2021 — Christopher G. Hill - Construction Law Musings
You would think I wouldn’t have to discuss the absolute need to respond to any served pleadings, particularly after some of the prior examples of what can happen if you fail to respond. Of course, I wouldn’t be starting a post like this if those that were sued contacted an experienced attorney in a timely fashion and followed this advice. Yet another example of the disastrous results that can occur simply from failing to file responsive pleadings occurred last year in the Eastern District of Virginia federal court in Alexandria, VA. In Pro-Telligent, LLC v. Amex Int’l, Inc. the Court considered a claim for breach of contract (among other causes of action) by Pro-Telligent against Amex. The operative facts are that Pro-Telligent was a subcontractor to Amex that claimed it was unpaid in the amount of $279,660.27, its Complaint was served on January 7, 2021, and Amex did not respond within the required 21-day window. The Court then held a hearing on February 28, 2020, regarding the validity of the Clerk of Court’s entry of default per the rules of court. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

The Problem with One Year Warranties

June 10, 2015 — Craig Martin – Construction Contractor Advisor
Contractors often ask if they should include a one year warranty in their subcontracts. I tell them that they can, but it may be more effective to include a one-year correction period. If a contractor does include a warranty in the contract, it may actually extend the time in which a contractor may be sued. I recommend instead a Correction Period. Typical Construction Warranties Form construction contracts, like the AIA forms, often times contain warranty language. The AIA A201, General Conditions, contains a warranty section that covers materials, but it does not address how long the work is warranted: “3.5 WARRANTY The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit.” Instead, the AIA A201, section 13.7, limits the time by which claims must be brought to 10 years or the applicable statute of limitations. 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

Co-Founding Partner Jason Feld Named Finalist for CLM’s Outside Defense Counsel Professional of the Year

March 19, 2024 — Linda Carter - Kahana Feld
Kahana Feld congratulates Co-Founding Partner Jason Daniel Feld, Esq., for being named one of three finalists for Claims & Litigation Management Alliance (CLM) Outside Defense Counsel Professional of the Year. Mr. Feld is a nationwide leader in construction claims and an active industry speaker, serving as panel counsel for many prominent insurance carriers, and personal counsel to multiple national and regional homebuilders, developers, and general contractors. Co-Founding Partner, Amir Kahana, states, “Jason is incredibly deserving of this recognition. When he joined our firm, we were 3 lawyers in one city, and seven years later, we are a national firm with over 65 attorneys in 10 cities and 6 states. Jason is a natural leader who is highly respected. He has earned the trust of his carrier clients, as well as his colleagues in the industry. In addition to everything he does for Kahana Feld, he also works tirelessly on behalf of CLM and has been a great leader in the Orange County Chapter. I am thrilled to see Jason receive the recognition he richly deserves.” Read the court decision
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Reprinted courtesy of Linda Carter, Kahana Feld
Ms. Carter may be contacted at lcarter@kahanafeld.com

Will Protecting Copyrights Get Easier for Architects?

November 28, 2022 — Scott L. Baker - Los Angeles Litigation Blog
Like any creative business, architects rely on their intellectual property. Their designs are at the center of their work. For example, as we discussed in a previous post, many architects nowadays focus on creating new ways for their building designs to be environmentally friendly and sustainable. However, nearly every form of intellectual property faces the risk of theft or infringement in the business world. Architects face unique challenges with their copyrights – as well as risks. Copyright Issues in the Architecture World One of the biggest issues, of course, is that there are many aspects of building designs that architects cannot protect by copyright. This is simply because various details are fundamental in the construction of every building. One person cannot own the rights to such a common design. Read the court decision
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Reprinted courtesy of Scott L. Baker, Baker & Associates
Mr. Baker may be contacted at slb@bakerslaw.com

Congratulations to BWB&O’s 2021 Super Lawyers Rising Stars!

July 05, 2021 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is excited to announce Partners Kyle Carroll, Nicole Nuzzo, and Michael D’Andrea, as well as Associates Andy Arakelian and Andrew Steinberg, have been selected to the 2021 Super Lawyers Southern California Rising Stars for their work in Civil and Family litigation! Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The patented selection process includes independent research, peer nominations, and peer evaluations. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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