Cambridge Massachusetts Building Expert Directory

CA Court of Appeal Reinstates Class Action Construction Defect Claims Against Homebuilder

September 03, 2015 — Beverley BevenFlorez-CDJ STAFF
Laurence R. Phillips, Andrew S. Azarmi, and Stefani Warren of Dentons reported that “on August 19, the California Court of Appeal, Fourth District, reinstated a class action asserting construction defect claims against a nationwide homebuilder.” According to the article, the decision is significant because “it effectively opens the door to class claims against homebuilders (and potentially other service providers employed in the homebuilding industry) arising out of alleged construction defects on California residential development and construction projects.” The decision is unpublished, but “could signal a troubling trend for companies involved in the homebuilding industry in California. It is not yet clear whether the decision will be appealed to the California Supreme Court.” Read the court decision
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Avoiding Lender Liability for Credit-Related Actions in California

October 27, 2016 — Anthony J. Carucci – Snell & Wilmer Real Estate Litigation Blog
Aside from general statutory prohibitions on lender discrimination, there are certain circumstances under California law in which lenders may be held liable for credit-related actions, such as negotiating or denying credit. See generally 11 Cal. Real Est. § 35:3 (explaining that the business of lending money is subject to the Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., the Fair Employment and Housing Act, Cal. Gov. Code § 12900 et seq., the Federal Fair Housing Act, 42 U.S.C. § 3601 et seq., and the Equal Credit Opportunity Act, 15 U.S.C. § 1691, et seq.). Specifically, lenders have been held liable for credit-related actions where, among other things, the lender (1) breached a loan commitment; (2) committed fraud; or (3) breached a fiduciary duty owed to the borrower. The Lender-Borrower Relationship As a general rule, a lender does not owe a duty of care to a borrower when the lender’s involvement in a transaction does not exceed the scope of its conventional role as a lender of money. Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 466 (“[I]t is established that absent special circumstances . . . a loan transaction is at arms-length and there is no fiduciary relationship between the borrower and lender.”); Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 (holding lender owed no duty of care to a borrower in preparing an appraisal of the real property that was security for the loan when the purpose of the appraisal is to protect the lender by satisfying it that the collateral provided adequate security for the loan, and noting that “as a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money”). Read the court decision
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Reprinted courtesy of Anthony J. Carucci, Snell & Wilmer
Mr. Carucci may be contacted at acarucci@swlaw.com

Pennsylvania Homeowner Blames Cracks on Chipolte Construction

October 14, 2013 — CDJ STAFF
“Everything was shaking, like a big bomb went off.” That’s how Hersey, Pennsylvania resident Maria Yi described the situation during construction of a Chipolte restaurant next to her home. She and other people thought it was an earthquake, but then found it came from the construction site. She told the operator of the machine to stop. Yi and her husband later found cracks in their home which they attribute to the construction activity. Township supervisors were sympathetic to Yi, with Kelly Fedeli, the Supervisor Vice Chairwoman, told Yi that she feels “very badly about what happened to you.” And Chuck Emerick, the township code officer told Yi that “we’re doing everything we can to help you.” This is not Yi’s first conflict with the proposed restaurant. Yi was involved in a lawsuit that sought to stop the restaurant from being built at all. That suit is being appealed, but even if Yi were to win at the appeal, the restaurant would go forward. Said Yi of the supervisors, “they told me there would be no problem.” Read the court decision
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COVID-izing Your Construction Contract

December 21, 2020 — Frederick E. Hedberg - Construction Executive
The global COVID-19 pandemic has changed the world forever, disrupting many industries, as well as creating unprecedented challenges that threaten many businesses. The construction industry is no different. Projects throughout the country have been adversely affected by unplanned work stoppages, delays, disruptions to the supply chain, price escalations and other unanticipated events. It is critical that owners, developers, contractors and suppliers learn from their experiences over the past year and account for the COVID-19 pandemic when drafting and negotiating contracts for their projects. First and foremost, parties should clearly define their rights and responsibilities to properly manage risks due to COVID-19 and its impacts. COVID-19 and other key related terms should be defined, relying on the CDC and state governments for guidance, to eliminate any uncertainties. The contract should also identify executive orders, guidelines and regulations that have been issued concerning COVID-19 by states, municipalities and other authorities that have jurisdiction where the project is located. Reprinted courtesy of Frederick E. Hedberg, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Hedberg may be contacted at fhedberg@rc.com Read the court decision
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Nonparty Discovery in California Arbitration: How to Get What You Want

January 08, 2019 — Leilani L. Jones - Payne & Fears
Opting for arbitration requires attorneys to balance efficiency and procedural protections. The implications of arbitration are something clients certainly have to carefully consider both when drafting arbitration provisions, and after initiating a demand. While arbitration can in many respects streamline the civil discovery process, one of the largest roadblocks for cases in California arbitrations is “streamlining” discovery from nonparties. This article explores the challenges presented by third party discovery in arbitration, and proposes strategies for obtaining such discovery efficiently and expeditiously. Read the court decision
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Reprinted courtesy of Leilani L. Jones, Payne & Fears
Ms. Jones may be contacted at llj@paynefears.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

WSHB Expands to Philadelphia

July 28, 2016 — Beverley BevenFlorez-CDJ STAFF
Wood Smith Henning & Berman LLP (WSHB) announced “the opening of its newest regional office at One Liberty Place, 1650 Market Street, 36th Floor, Philadelphia, Pennsylvania 19103,” according to a press release. Elizabeth Chalik will be the managing partner at the new location. Chalik is “a highly regarded litigator with close to 15 years of trial experience” and her practice has focused on products liability, casualty, toxic tort and transportation litigation. Furthermore, Chalik is admitted to practice law in both New Jersey and Pennsylvania. “It is fitting that as we celebrate WSHB’s 19th year, we are opening our 19th office,” said Daniel Berman, Firm Chairman and Co-founder. “With this expansion, we continue our pattern of strategic long term growth. That, coupled with Liz’s proven track record and many years in Philadelphia, further expands our ability to better serve our clients in the Northeast.” Chalik has been recognized on the Super Lawyers List of Rising Stars for three years running. “I am thrilled to be joining Wood Smith Henning & Berman. WSHB’s long-standing reputation and dedication to their clients drew me to them and I knew that this would be the right place for me,” said Chalik. “I could not be more excited about the opportunity to manage WSHB’s new Philadelphia office!” WSHB also has offices located in Connecticut, Denver, Fresno, Glendale, Las Vegas, Los Angeles, Miami, New Jersey, New York, Northern California, Orange County, Phoenix, Portland, Rancho Cucamonga, Riverside, San Diego, Seattle and Tampa. Read the court decision
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Insureds Survive Motion to Dismiss Civil Authority Claim

September 29, 2021 — Tred R. Eyerly - Insurance Law Hawaii
After suffering business losses due to a hurricane, the insured's Civil Authority claim survived the insurer's motion to dismiss. Pathology Lab. v. Mt. Hawley Ins. Co., 2021 U.S. Dist. LEXIS 145129 (W.D. La. Aug. 3, 2021). Hurricane Laura devastated Lake Charles, Louisiana causing severe damage to the insured property as well as other properties within a mile of the insured property. All seven electrical transmission line corridors feeding Lake Charles were catastrophically damaged causing an extensive power outage. Government shutdown Orders prohibited the insureds' access to the Lab. The Orders were issued by the respective civil authorities both in anticipation of and as a result of damage and dangerous physical conditions expected from and actually resulting from Hurricane Laura and the continuation thereof. When the hurricane arrived, all businesses that were not essential to the recovery were ordered closed until electricity, water and sewer services were restored. As a result, the Lab was closed from August 27, 2020 toSeptember 8, 2020. The Lab sued for business income under the policy's Civil Authority provisions. Mt. Hawley moved to dismiss. Mt. Hawley argued that the Orders did not by their explicit terms close the Lab's business because closure was entirely dependent on the conditions of the described premises itself and whether it was safe to occupy. Mt. Hawley further argued that the mandatory Evacuation Order was issued in anticipation of property damage and therefore did not trigger coverage under the Civil Authority provision. 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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