CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Communications between Counsel and PR Firm Hired by Counsel Held Discoverable

March 22, 2017 — Kevin R. Crisp, David W. Evans, & Sarah A. Marsey – Haight Brown & Bonesteel LLP
Counsel handling cases involving newsworthy facts and litigation often hire public relations (“PR”) consultants. In Nicholas Behunin v. The Superior Court of Los Angeles County, 2017 DJDAR 2405 (No. B272225 March 14, 2017) the California Court of Appeal, Second District, denied a petition for writ of mandate concerning a trial court discovery order holding that communications between a plaintiff’s attorney and a public relations firm counsel hired for the purpose of creating a website for the Plaintiff were discoverable, despite claims that such communications were protected from disclosure by attorney-client privilege. Plaintiff sued Defendants -- (the) Charles Schwab and his son Michael Schwab -- over an unsuccessful real estate investment. Plaintiff’s attorneys hired a public relations consultant to create a website (www.chuck-you.com) that sought to link the Schwabs with the late Indonesian dictator Suharto’s family. The court succinctly described the web site as “a social media campaign to induce the Schwabs to settle the case.” Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Kevin R. Crisp, David W. Evans and Sarah A. Marsey Mr. Crisp may be contacted at kcrisp@hbblaw.com Mr. Evans may be contacted at devans@hbblaw.com Ms. Marsey may be contacted at smarsey@hbblaw.com Read the court decision
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Select the Best Contract Model to Mitigate Risk and Achieve Energy Project Success

October 17, 2022 — Gregory S. Seador - Construction Executive
Power and energy projects are inherently complex and risky. Therefore, management and proper allocation of risk among project participants are essential to success. Careful drafting of the engineering, procurement and construction (EPC) contract is a critical first step in managing risk. The standard contract format used for power and energy construction projects is the EPC contract. In its traditional form, the EPC contract makes the EPC contractor responsible for the entire project, including engineering (design of the power plant), procurement (purchase, installation and performance of all equipment) and construction (construction of the plant). EPC contracts can, however, employ different contract models and pricing structures, each of which carries differing levels of risk for project participants. Selecting the appropriate contract model and pricing structure to meet the unique needs of the project is important. Reprinted courtesy of Gregory S. Seador, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Seader may be contacted at seador@slslaw.com

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Construction Professionals Could Face More Liability Exposure Following California Appellate Ruling

December 17, 2024 — Jamison Rayfield & Brian Slome - Lewis Brisbois
San Diego/San Francisco, Calif. - The California Court of Appeal recently reversed a summary judgment ruling in favor of a geotechnical engineering firm that had conducted a brief inspection of a residential construction project's footing trench for $360. The case arose when homeowner Cheryl Lynch experienced significant property damage after her home's foundation failed and the structure began subsiding into a slope. Lynch sued Peter & Associates for professional negligence and nuisance, despite having no direct contractual relationship with the firm, which had been hired by her contractor to perform the geotechnical inspection. The court distinguished this case from Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, which had limited auditors' professional duty to third parties, noting that Bily dealt with purely economic damages, whereas Lynch involved physical property damage, making Bily's policy concerns about unlimited liability inapplicable. The court emphasized that construction professional negligence cases, particularly those involving residential property damage, warrant a different analysis than cases involving economic loss. Reprinted courtesy of Jamison Rayfield, Lewis Brisbois and Brian Slome, Lewis Brisbois Mr. Rayfield may be contacted at Jamison.Rayfield@lewisbrisbois.com Mr. Slome may be contacted at Brian.Slome@lewisbrisbois.com Read the court decision
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Downtown Sacramento Building Riddled with Defects

July 23, 2014 — Beverley BevenFlorez-CDJ STAFF
The Board of Equalization tower in Sacramento, California has gone through $60 million in repairs to deal with issues such as bats, floods, leaky windows, mold, and glass panels that would “pop off the building with no warning and shatter on the sidewalk,” according to Insurance News. However, an additional $115 million in repairs are planned to deal with “crumbling core plumbing” and “concrete-and-glass exterior,” among other problems. Now, “a Sacramento attorney filed a $50 million tort claim this month, a first step toward suing the tax-collecting department on behalf of employees who say their bosses downplayed the building's ailments and put workers' health at risk.” "Even though my lawyers told me not to say this, I don't think it's safe," board Chairman Jerome Horton told Insurance News. Read the court decision
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Amazon Can be Liable in Louisiana

August 05, 2024 — Michael J. Ciamaichelo - The Subrogation Strategist
In June 2024, the Supreme Court of Louisiana held that: (1) Amazon can be considered a “seller” of defective products sold by third parties on its website; and (2) Amazon can be liable under a theory of negligent undertaking for third-party products. In Pickard v. Amazon.com, Inc., No. 2023-CQ-01596, 2024 La. LEXIS 1112, a Louisiana man, Archie Pickard, died from burns sustained in a house fire allegedly caused by a defective battery charger purchased on Amazon from a third-party seller located in China. Mr. Pickard’s family filed a lawsuit against Amazon in the United States District Court for the Western District of Louisiana alleging claims under the Louisiana Products Liability Act (LPLA) and for negligent undertaking. Amazon filed a motion for summary judgment, which prompted the federal court to certify questions to the Supreme Court of Louisiana regarding these two claims. Amazon Can be a “Seller” Under the Louisiana Products Liability Act Amazon does not neatly fit within the definition of “seller” under the LPLA because the LPLA was drafted in 1988, before the internet existed. The LPLA defines a “seller” as a person or entity (who is not the manufacturer) who conveys title or possession of the product to another for something of value. La R.S. 9.2800.53(s) (emphasis added). The Supreme Court of Louisiana determined that Amazon was a “seller” because it conveyed “possession” of the charger to Mr. Pickard through the “Fulfillment by Amazon” (FBA) program, which provides storage, delivery, customer service, and returns of third-party products sold on Amazon. Most products on Amazon are sold by third parties, rather than Amazon. Many third-party sellers are small or medium-size companies, and some are individuals seeking to make supplemental income. Amazon offers the FBA program to handle storage and logistics to third-party sellers. When a product is sold through the FBA program, the seller sends the product to Amazon’s warehouses, where it is stored until it is purchased. When an FBA-product is purchased, Amazon collects payment, delivers the product (often in an Amazon van), and handles the potential return of the product. The Supreme Court of Louisiana determined that Amazon was a “seller” of the battery charger even though Amazon did not pass title to Mr. Pickard because: (1) Amazon had physical custody of the charger while stored in the warehouse; and (2) Amazon controlled the transaction and logistics through its FBA program. Read the court decision
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Reprinted courtesy of Michael J. Ciamaichelo, White and Williams
Mr. Ciamaichelo may be contacted at ciamaichelom@whiteandwilliams.com

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Application of Set-Off When a Defendant Settles in Multiparty Construction Dispute

January 05, 2017 — David Adelstein – Florida Construction Legal Updates
The defense of set-off is an important defense in construction disputes, particularly multiparty disputes. For more information on this defense, please check out this article as it explains the application of set-off in civil disputes in detail. The issue of set-off will come up in a multiparty dispute when a plaintiff settles with one or more of the defendants. The remaining defendant(s) wants the benefit of that settlement to set-off and reduce any judgment against it. An example of this scenario can be found in Escadote I Corp. v. Ocean Three Limited Partnership, 42 Fla. L. Weekly D23a (Fla. 3d DCA 2016). In this case, an owner of a condominium unit sued the condominium association, the developer, and the general contractor for water intrusion and mold infestation. The claim against the condominium association was the only claim that entitled the owner to attorney’s fees pursuant to its lawsuit (thus, attorney’s fees were isolated to only that claim against the association). During trial, the owner settled with the association. In entering a settlement, the owner smartly allocated the settlement amount such that $500 was allocated to its principal damages and $374,500 was allocated to its attorney’s fees. The owner then obtained a jury verdict against the contractor and developer for approximately $2M, jointly and severally, and the contractor and developer wanted the entire $375,000 settlement amount with the association to be set-off from the $2M verdict. The trial court set-off the entire $375,000 from the jury verdict when entering judgment. The appellate court reversed. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dma@katzbarron.com

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Seattle Crane Strike Heads Into Labor Day Weekend After Some Contractors Sign Agreements

September 25, 2018 — Christine Kilpatrick - Engineering News-Record
A continuing construction worker strike in Seattle and Western Washington state headed into Labor Day weekend after a number of contractors signed individual agreements to return to work. Read the court decision
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Reprinted courtesy of Christine Kilpatrick, ENR
Ms. Kilpatrick may be contacted at kilpatrickc@enr.com

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California Restricts Principles of “General” Personal Jurisdiction

April 01, 2015 — Kristian B. Moriarty and R. Bryan Martin – Haight Brown & Bonesteel LLP
In BNSF Railway Company v. Superior Court (Kralovetz) (Filed 3/27/2015, No. B260798), the California Court of Appeal, Second District, held a Delaware railroad corporation, with its principal place of business in Texas, was not subject to “general” personal jurisdiction in California, despite California housing 8.1% of the corporation’s total workforce, accounting for 6% of the corporation’s revenue, and containing just under 5% of its total track mileage. Plaintiff, Vicki Kralovetz, filed suit in California Superior Court against defendant, BNSF Railway Company (“BNSF”), and others, for wrongful death. Plaintiff contended her husband was exposed to asbestos products manufactured by BNSF in Kansas while working at a dismantling facility owned by BNSF’s predecessor in interest. Plaintiff claimed the exposure caused her husband to contract mesothelioma, which resulted in his death. Reprinted courtesy of Kristian B. Moriarty, Haight Brown & Bonesteel LLP and R. Bryan Martin, Haight Brown & Bonesteel LLP Mr. Moriarty may be contacted at mmoriarty@hbblaw.com Mr. Martin may be contacted at bmartin@hbblaw.com Read the court decision
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