Cambridge Massachusetts Building Expert Directory

CC&Rs Not the Place for Arbitration Agreement, Court Rules

May 24, 2011 — CDJ STAFF

In January, the California Court of Appeals ruled that an arbitration clause inserted in a development’s CC&Rs by the developer could not be enforced. The case, Villa Vicenza Homeowners Association v. Noble Court Development, involved a case in which, according to the opinion, “following the first sale Nobel controlled the board of directors of the Association and because the initial condominium buyers noticed defects in common areas and common facilities and did not believe Nobel had provided a reserve fund sufficient to repair the defects, the condominium owners brought a derivative action on behalf of the Association against Nobel.”

The court concluded, “The use of CC&R's as a means of providing contractual rights to parties with no interest in or responsibility for a common interest development is also problematic from the standpoint of determining what if any consideration would support such third-party agreements. By their terms the CC&R's bind all successors, even those with whom a third party such as Nobel has never had any contractual relationship and to whom Nobel has not provided any consideration.” The court determined that “the trial court did not err in denying Nobel's motion to compel arbitration.”

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Pollution Exclusion Does Not Apply To Concrete Settling Dust

November 28, 2018 — Tred R. Eyerly - Insurance Law Hawaii
Applying Virginia law, the federal district court determined that the pollution exclusion did not bar coverage. Allied Prop. & Cas. Ins. Co. v. Zenith Aviation, Inc., 2018 U.S. Dist. LEXIS 14727 (E.D. Va. Aug. 29, 2018). Zenith Aviation, Inc. hired Abby Construction Company to install an elevator at its warehouse. A wet saw was used to cut away concrete, but Abby did not use any water with the wet saw. This created a significant amount of concrete dust to leave the warehouse. Surrounding businesses contacted the fire department because they thought the dust was smoke from a fire. The concrete dust settled inside Zenith's building, damaging airplane parts stored in the warehouse. 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

Do Hurricane-Prone Coastal States Need to Update their Building Codes?

April 15, 2015 — Beverley BevenFlorez-CDJ STAFF
Property Casualty 360 reported that “a number of coastal states took no action to improve their building code systems since 2012, and a few have weaker systems in place, according to the Insurance Institute for Business & Home Safety (IBHS).” The IBHS released their “Rating the States” report that published the results of their study of “the 18 most hurricane-prone states located along the Gulf of Mexico and the Atlantic Coast on their building regulations.” States can receive up to 100 points, with a higher score reflecting better state building requirements. Delaware scored lowest with a mere 17 points—the same score it received in 2012. Virginia, the highest scored state, earned 95 points. Read the court decision
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Questions of Fact Regarding Collapse of Basement Walls Prevent Insurer's Motion for Summary Judgment

December 19, 2018 — Tred R. Eyerly - Insurance Law Hawaii
The court denied the insurer's motion for summary judgment on whether the policy covered the collapse of basement walls based upon factual issues presented. Sirois v. USAA Cas. Ins. Co., 2018 U.S. Dist. LEXIS 158508 (D. Conn. Sept. 18, 2018). The insureds' purchased their home in 2010. In December 2015, a crack in the basement wall was noticed. It was not thought to be a serious problem. But in 2016, the insured read an article about defective concrete problems affecting homeowners in Connecticut. An inspector, Dean Soucy, was hired. He found faults and cracks in the foundation walls. Thereafter, a claim was submitted to USAA under homeowners' policies issued over the years to the insureds. USAA denied coverage. 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

Sometimes You Get Away with Unwritten Contracts. . .

July 28, 2018 — Christopher G. Hill - Construction Law Musings
I have spoken often regarding the need for a well written construction contract that sets out the “terms of engagement” for your construction project. A written construction contract sets expectations and allows the parties to the contract to determine the “law” of their project. An unwritten “gentleman’s agreement” can lead to confusion, faulty memories, and more money paid to construction counsel than you would like as we lawyers play around in the grey areas. One other area where the written versus unwritten distinction makes a difference is in the calculation of the statute of limitations. In Virginia, a 5 year statute of limitations applies to written contracts while a 3 year statute of limitations applies to unwritten contracts. This distinction came into stark relief in the case of M&C Hauling & Constr. Inc. v. Wilbur Hale in the Fairfax, Virginia Circuit Court. In M&C Hauling, M&C provided hauling services to the defendant through a subcontract with Hauling Unlimited in 2014, the last of which was in July. M&C provided over 2000 hours of hauling and provided time tickets (that were passed to Mr. Hale on Hauling Unlimited letterhead and signed by Mr. Hale or his agent) and an invoice stating the price term of $75.00 per hour. No separate written contract between M&C and Hauling Unlimited or Mr. Hale existed. Read the court decision
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Reprinted courtesy of Christopher G. Hill, The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Be Careful with Continuous Breach and Statute of Limitations

January 21, 2019 — Christopher G. Hill - Construction Law Musings
If you are a construction attorney like me (or anyone that takes cases to court), you deal with statutes of limitation on a daily basis. These statutes seem pretty simple. A party has “X” amount of time in which to file its lawsuit after accural of the cause of action. In a breach of contract suit, the accrual is the date of breach. Easy, right? Wrong, at least in some circumstances. Take for example, the case of Fluor Fed. Sols., LLC v. PAE Applied Techs., LLC out of the 4th Circuit Court of Appeals. In this unpublished opinion the Court looked at “continuous breach” versus “series of separate breaches.” The basic facts are that in 2000 Flour entered into a contract with PAE whereby PAE requested and claims to have received consent from Flour to a 2.3% administrative cost cap on Flour’s work on an Air Force contract. Flour claimed that it did not agree to this cap. In 2002, Flour begain billing PAE for its costs plus the 2.3% administrative markup and billed in this fashion for the first full year. However, in subsequent years and for the next 11 years, Flour billed PAE at a higher markup rate than the 2.3%. PAE disputed the increased markup and paid Flour at the 2.3% rate. Flour periodically protested but made no move to court until it filed suit in March of 2016. After a bench trial, the district court found that Flour had agreed to the cap and found for PAE. 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

Cold Stress Safety and Protection

February 27, 2023 — The Hartford Staff - The Hartford Insights
The best time to think about cold stress safety isn’t when it’s about to snow – it’s actually when it’s still warm out. “Construction firms and other businesses may start to think about protecting workers against the cold when frigid temperatures and the winter are right around the corner. But we’ve found that oftentimes, that may be too late to start thinking about cold stress prevention,” said Chris O’Hala, director of construction Risk Engineering at The Hartford. “Thinking about cold protection months ahead can prevent serious injuries, illnesses or even death.” O’Hala added that possible solutions for cold-related risks, like planning for temporary heat or building temporary enclosures, “require very specific planning, equipment and materials.” Read the court decision
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Reprinted courtesy of The Hartford Staff, The Hartford Insights

Construction Contract Basics: Attorney Fee Provisions

November 13, 2023 — Christopher G. Hill - Construction Law Musings
I have discussed the need for attorney fee provisions in your construction contracts in prior posts here at Construction Law Musings, but thought it merited a restatement of the reasons for the inclusion of such fee provisions (and changing of such provisions when presented) here with the second of my construction contract basics posts. Why would you want such a provision? The answer is that without it, or a statute specifically allowing for such fees, a Virginia court will not award your attorney fees without such a provision. Virginia, and a lot of other states, follow the so-called “American Rule” when it comes to attorney fees and costs. In short, that rule states that the parties to litigation pay their own way unless they agree otherwise. While it may seem unfair to make a successful litigant pay for the privilege of being right, that is the rule in Virginia. Throw in the fact that Virginia courts strictly construe construction contracts and voila we have a situation where without a provision in the contract stating that one party or both will be able to collect attorney fees should that contractor or subcontractor prevail, a construction professional that gets sued (whether rightly or wrongly) will be left with a hefty attorney fees bill and no way to recoup those fees through the courts or any other method. 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

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES