CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

No Duty to Defend Under Pollution Policy

February 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
The court found there was no duty to defend or indemnify under a pollution policy for claims arising from a building fire. URS Corp. v. Zurich Am Ins. Co., 2014 N.Y. Misc. LEXIS 222 (N.Y. Sup. Ct. Jan. 16, 2014). Two firemen were killed while fighting a fire at the Deutsch Bank building in New York City. The owner of the building, URS, was sued by the estates of the two deceased firemen and other firemen who were injured by the fire. URS was an additional insured under a contractors pollution liability policy issued by Hudson Specialty Insurance Company. The policy promised to pay for damages to the insured "if the damages result from a pollution condition." "Pollution condition" was defined as "the discharge, dispersal, release or escape of smoke, vapors, fumes, acids, alkalis, toxic chemicals, [etc.]" The policy explicitly noted that it did not provide commercial general liability coverage. Hudson denied coverage and URS sued. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Payment Bond Claim Notice Requires More than Mailing

August 04, 2015 — Christopher G. Hill – Construction Law Musings
It’s been a while since I posted something new relating to Virginia’s “Little Miller Act” and its various notice requirements for a subcontractor to make a payment bond claim. I have posted on the basics of a Virginia payment bond claim previously here at Musings. One of these basics is the 90 day notice requirement for suppliers or second tier subcontractors with no direct contractual relationship to the general contractor. A recent case from the Norfolk, Virginia Circuit Court examined when notice is “given” under the Little Miller Act. In R T Atkinson Building Corp v Archer Western Construction, LLC the Court looked at the question of whether mailing of the notice of claim is enough to constitute notice being “given” in a manner that would satisfy the statutory requirements. In that case, the supplier mailed the notice within the 90 day window, but the defendant argued on summary judgment that it did not receive the notice until 2 days after the 90 day window had closed. In support of this contention, the defendant provided tracking information showing delivery by the USPS on the non-compliant date. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Action Needed: HB24-1230 Spells Trouble for Colorado Construction Industry and its Insurers

March 25, 2024 — David McLain - Higgins, Hopkins, McLain & Roswell, LLC
In an apparent gift to plaintiffs’ construction defect lawyers, Representatives Parenti and Bacon introduced House Bill 24-1230 on February 12, 2024. The bill was assigned to the House Judiciary Committee and is scheduled for hearing on March 6th, during the afternoon session beginning at 1:30 pm. To date, the bill does not have any senate sponsors, perhaps because the senators are more interested in serving their constituents’ needs for attainable housing than in lining the pockets of their plaintiffs’ construction defect attorney friends. According to the bill’s summary, HB 24-1230 contains the following provisions: Current law declares void any express waivers of or limitations on the legal rights or remedies provided by the “Construction Defect Action Reform Act” or the “Colorado Consumer Protection Act.” Sections 1 and 4 make it a violation of the “Colorado Consumer Protection Act” to obtain or attempt to obtain a waiver or limitation that violates the aforementioned current law. Read the court decision
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Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell
Mr. McLain may be contacted at mclain@hhmrlaw.com

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Disgruntled Online Reviews of Attorney by Disgruntled Former Client Ordered Removed from Yelp.com

June 30, 2016 — Renata L. Hoddinott & David W. Evans – Haight Brown & Bonesteel LLP
The Court of Appeal of the State of California – First Appellate District in Hassell v. Bird (6/7/16 – Case No. A143233) affirmed an order from a judgment in favor of an attorney and her firm and against a disgruntled former client directing non-party Yelp.com to remove defamatory reviews posted to its site. Attorney Dawn Hassell (“Hassell”) filed suit against Ava Bird (“Bird”) arising out of Hassell’s brief legal representation. The attorney/client relationship lasted a total of 25 days after which Hassell withdrew from the representation because of difficulties communicating with Bird and Bird expressed dissatisfaction with Hassell. When legal representation terminated, Bird had 21 months before the expiration of the statute of limitations on her personal injury claim. Reprinted courtesy of Renata L. Hoddinott, Haight Brown & Bonesteel LLP and David W. Evans, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Ms. Hoddinott may be contacted at rhoddinott@hbblaw.com Read the court decision
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Safe Commercial Asbestos-Removal Practices

April 18, 2023 — Emily Newton - Construction Executive
Contractors must proceed with caution to safely remove asbestos and protect employees and commercial buildings. Only contractors licensed by the Environmental Protection Agency (EPA) in abatement should dispose of it, because the best asbestos-removal practices require high degrees of care and safety. Asbestos is a stealthy material, quickly becoming airborne and contaminating other areas of the building and humans. No matter a contractor's tenure in the field, it's vital to remember the top practices in the industry as people learn more about elusive, toxic asbestos-containing materials (ACMs). Wait for Technician and Inspector Feedback It’s important to find out if a jobsite contains asbestos. Proceed with caution if the structure was built before the 1990s. The removal process shouldn't start immediately if a business suspects asbestos and reaches out to a company. Inspectors scope the situation and grab samples for lab testing to determine how abaters should handle the case. They will need to know every potential hiding place for the asbestos, analyzing everything from caulking to wiring for asbestos coatings and other variants of the substance. This may take time, but commercial contractors must wait until they receive this information before proceeding. Reprinted courtesy of Emily Newton, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Courts Take Another Swipe at the Implied Warranty of the Plans and Specifications

December 15, 2016 — John P. Ahlers – Ahlers & Cressman PLLC
Implied warranties are warranties created by law, legislation, or courts. In the construction industry, one of the most prominent implied warranties is that owners who provide plans and specifications to their contractors impliedly warrant the adequacy of their plans and specifications.[i] That implied warranty had its beginning in the 1918 US Supreme Court decision of U.S. v. Spearin[ii] and is, therefore, popularly known as the Spearin Doctrine. Under the Spearin Doctrine, if the contractor completes the work in accordance with the owner’s plans and specifications, but there is a deficiency or failure, the owner, not the contractor, is responsible. When the owner breaches its implied warranty, in most instances, the contractor is entitled to additional compensation for extra work performed, delays experienced, and other additional expense or loss occasioned by the warranty breach. A recent case demonstrates that this implied warranty is not “immunity.” The contractor must still act reasonably and diligently, particularly when the contract provisions so require. In the recent Fifth Circuit case of Dallas/Ft. Worth International Airport v. INet Airport Systems,[iii] the court, despite the implied warranty that existed, did not grant the contractor summary judgment on claims involving admitted plan deficiencies, since factual issues existed regarding the contractor’s cooperation and participation in the solution to the defects. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers & Cressman, PLLC
Mr. Ahlers may be contacted at jahlers@ac-lawyers.com

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David M. McLain to Speak at the CLM Claims College - School of Construction - Scholarships Available

July 28, 2016 — David M. McLain – Colorado Construction Litigation
I am happy to have been asked to serve as an instructor at this year's CLM Claims College – School of Construction, to be held at the Marriott Baltimore Waterfront in Baltimore, Maryland on Wednesday, September 7, 2016 through Saturday, September 10, 2016. Overview of the 2016 School of Construction Construction claims present myriad complexities in claim handling. Construction defect lawsuits are often multi-party cases with cross claims and third-party claims between and among the numerous defendants. Insurance coverage is intertwined and complex due to the interplay of primary, excess, wrap, and additional insurers for the numerous defendants. All this is further complicated by statutes and regulations, inconsistent case law and procedural peculiarities throughout the United States. The economic stakes are high as the damages claims can be in the multi-millions. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

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San Francisco House that Collapsed Not Built to Plan

February 14, 2014 — Beverley BevenFlorez-CDJ STAFF
Last December, a San Francisco, California “developer’s Twin Peaks house collapsed and slid down a hill during renovations.” The San Francisco Chronicle reported that the house “was being supported by three reinforcing towers, rather than the nine required under its approved plans, according to documents provided to city building inspectors.” According to a report by Department of Building Inspection chief Tom Hui, developer Mel Murphy "’failed to follow and implement the approved plans and the sequence of construction’ in his permit,” as quoted by The San Francisco Chronicle. The report also stated that the work “was not independently inspected as required” though this is “vehemently disputed by Murphy.” Read the court decision
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