Cambridge Massachusetts Building Expert Directory

Texas Allows Wide Scope for Certificate of Merit

January 07, 2025 — Lian Skaf - The Subrogation Strategist
The purpose of certificate of merit (sometimes referred to as affidavit of merit) statutes is to identify frivolous claims before the court wastes time and resources during litigation. More common in medical malpractice cases, several states have enacted similar requirements for professional negligence claims dealing with construction-related issues. While a subrogation attorney should not be bringing a frivolous case to suit anyway, the requirement adds another step in the process that plaintiffs need to properly navigate. Chapter 150 of the Texas Civil Practice and Remedies Code requires that in an action arising out of professional services by a licensed or registered professional, claimants must file an affidavit from a qualified expert attesting to the theories of recovery, the negligence and the factual basis for the claims. The expert must be competent, have the same professional license or registration as the defendant and practice in the area of practice of the defendant. In Janis Smith Consulting, LLC v. Rosenberg, No. 03-23-00370-CV, 2024 Tex. App. LEXIS 7961, the Court of Appeals of Texas, Third District (Court of Appeals) addressed a challenge from the defendant as to the sufficiency of the plaintiff’s certificate of merit in an interlocutory appeal. The Court of Appeals affirmed the lower court’s dismissal of the defendant’s motion to dismiss based on the allegedly improper certificate of merit, holding that the plaintiff’s expert was sufficiently qualified to certify the legitimacy of the case. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

Insurance Companies Score Win at Supreme Court

December 26, 2022 — Mason Fletcher & Ryan Sternoff - Ahlers Cressman & Sleight PLLC
In 2011, the Washington State Department of Transportation (“WSDOT”) contracted with Seattle Tunnel Partners, a joint venture of Dragados USA and Tutor Perini (“STP”) to construct a tunnel (“SR 99 Tunnel”) to replace the dilapidated Alaska Way Viaduct. STP obtained a builder’s “all-risk” insurance policy (“Policy”) from Great Lakes Reinsurance (UK) PLC and several other insurers (collectively, the “Insurers”) which insured against damage to both the project and the tunnel boring machine popularly known as Big Bertha (“Bertha”). Bertha began excavating in July 2013 but broke down a few months later when the machine stopped working. Work did not resume on the project until December 2015. WSDOT and STP tendered insurance claims for the losses associated with the delays and breakdown of Bertha but the Insurers denied coverage. Thereafter, WSDOT and STP sued. The Insurers moved the trial court for partial summary judgment to resolve some, but not all, of the coverage disputes. In a unanimous decision, the Washington State Supreme Court affirmed the trial court and Court of Appeals, and held that insurance companies do not have to reimburse WSDOT and STP for costs accrued during a two-year Project delay, under certain provisions of the insurance policies. Reprinted courtesy of Mason Fletcher, Ahlers Cressman & Sleight PLLC and Ryan Sternoff, Ahlers Cressman & Sleight PLLC Mr. Sternoff may be contacted at ryan.sternoff@acslawyers.com Read the court decision
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As Fracture Questions Remain, Team Raced to Save Mississippi River Bridge

September 06, 2021 — Jim Parsons - Engineering News-Record
"How is this bridge still standing?” That was the initial reaction of Aaron Stover, Michael Baker International’s vice president and regional bridge practice lead, as he first studied images of a fractured tie beam that forced the May 11 emergency shutdown of the I-40/Hernando de Soto Bridge between Tennessee and Arkansas. Discovered by chance earlier in the day during MBI’s routine above-deck inspection, the fracture on the bridge’s eastbound span affected nearly half the cross-section of a 26-in. by 33-in. welded girder supporting one of the 50-year-old structure’s 900-ft-long, 100-ft-high arched navigation spans across the Mississippi River. Reprinted courtesy of Jim Parsons, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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California Judicial Council Votes to Rescind Prohibitions on Eviction and Foreclosure Proceedings

September 28, 2020 — David Rao & Lyndsey Torp - Snell & Wilmer Real Estate Litigation Blog
The California Judicial Council’s emergency rules staying evictions and judicial foreclosures are coming to an end. On March 27, 2020, the Governor of California issued executive order N-38-20, giving the Judicial Council emergency authority to act in response to the COVID-19 pandemic. On April 6, 2020, the Judicial Council of California voted to approve temporary emergency rules of court. Rule 1 prohibited the issuance of a summons, or the entering of a default, in an eviction action for both residential and commercial properties except as necessary to protect public health and safety. Rule 1 also continued all pending unlawful detainer trials for at least 60 days, with no new trials being set until at least 60 days after a request was filed. Rule 2 stayed all pending judicial foreclosure actions, tolled the statute of limitations, and extended the deadlines for responding to such actions. Rule 1 and Rule 2 were to remain in effect until 90 days after the Governor declared the state of emergency resulting from the COVID-19 pandemic lifted, or until repealed by action of the Judicial Council. On August 13, 2020, the Judicial Council voted 19-1 to sunset Rule 1 and Rule 2 as of September 1, 2020. Beginning September 2, 2020, California state courts are authorized to issue summons on unlawful detainer actions, enter defaults, and set trial dates on request. Stays on pending judicial foreclosure actions will be lifted. Reprinted courtesy of David Rao, Snell & Wilmer and Lyndsey Torp, Snell & Wilmer Mr. Rao may be contacted at drao@swlaw.com Ms. Torp may be contacted at ltorp@swlaw.com Read the court decision
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Can Businesses Resolve Construction Disputes Outside of Court?

August 19, 2024 — Scott L. Baker - Los Angeles Litigation Blog
Time is of the essence in any construction project. So, if a dispute arises at any point, business owners generally wish to avoid the chance of a time-consuming case going to court. Can California construction businesses manage these disputes effectively outside of court? It is possible in some cases. Business owners should carefully consider these three steps. 1. Go Back to the Contract Even if the contract is at the center of the dispute, it is important to refer to any details regarding dispute resolution included within the document. It is common for contracts to have some form of a dispute resolution clause. In such a case, both parties should follow the steps outlined in that agreement. 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

While Construction Permits Slowly Rise, Construction Starts and Completions in California Are Stagnant

December 05, 2022 — John Kazanovicz & Jason Feld - Kahana Feld
There is an interesting phenomenon happening in the California construction market since the Summer of 2022. There is a steady but slow rise in the construction building permits being issued throughout California. According to the U.S. Census and the U.S. Department of Housing and Urban Development’s joint announcement (https://www.census.gov/construction/nrc/pdf/newresconst.pdf) of new residential construction statistics for September 2022, privately‐owned housing units authorized by building permits in September were at a seasonally adjusted annual rate of 1,564,000. This is 1.4 percent above the revised August rate of 1,542,000. While this is slightly lower than a year ago (3.2 percent below the September 2021 rate of 1,615,000), the trend for obtaining new home permits was reportedly ahead of the projected rates given the market conditions and inflation throughout the country. Interestingly, single‐family authorizations in September were at a rate of 872,000 which was also 3.1 percent below the revised August 2022 figure of 900,000. Authorizations of units in buildings with five units or more were at a rate of 644,000 in September. Overall, while slowly recovering from the record lows during the height of the pandemic, the economic forecast for new home construction in California is positive, but cautious. The flip side of this coin is the construction starts in California, which continue to remain stagnant despite additional building permits being issued. Privately‐owned housing starts in September were at a seasonally adjusted annual rate of 1,439,000. This is 8.1 percent (±14.9 percent) below the revised August estimate of 1,566,000 and is 7.7 percent (±11.5 percent) below the September 2021 rate of 1,559,000. Single‐family housing starts in September were at a rate of 892,000; this is 4.7 percent (±10.7 percent) below the revised August figure of 936,000. The September rate for units in buildings with five units or more was 530,000. Reprinted courtesy of John Kazanovicz, Kahana Feld and Jason Feld, Kahana Feld Mr. Kazanovicz may be contacted at jkazanovicz@kahanafeld.com Mr. Feld may be contacted at jfeld@kahanafeld.com Read the court decision
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Congratulations to Wilke Fleury’s 2023 Super Lawyers and Rising Stars!!

July 10, 2023 — Wilke Fleury LLP
Wilke Fleury is extremely proud that 18 of its incredible attorneys have been selected as 2023 Northern California Super Lawyers or Rising Stars! Super Lawyers rates attorneys in each state using a patented selection process and publishes a yearly magazine issue that produces award-winning features on selected attorneys. Congratulations to this talented group: Super Lawyers of 2023 David A. Frenznick Steven J. Williamson Matthew W. Powell Daniel L. Egan George A. Guthrie Michael G. Polis Daniel J. Foster Stephen K. Marmaduke Neal C. Lutterman Trevor L. Stapleton Ronald R. Lamb Read the court decision
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Reprinted courtesy of Wilke Fleury LLP

#1 CDJ Topic: McMillin Albany LLC v Superior Court of California

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
Stephen A. Sunseria of Gatzke Dillon & Balance LLP discussed how the Fifth Appellate District court “issued a blistering criticism of the Fourth Appellate District’s prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Ca.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act.” Sunseri stated that “McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts.” Read the full story... In another article regarding the McMillin Albany LLC case, Garret Murai of Wendel Rosen Black & Dean LLP posted an article on his California Construction Law Blog that went over the legal debate of California’s Right to Repair Act including Liberty Mutual, Burch v. Superior Court, and KB Home Greater Los Angeles, Inc. v. Superior Court and concluded with a discussion of the McMillin Albany case. Murai predicted, rightly it turned out, that the case would see a “final round before the California Supreme Court.” Read the full story... In their December 2, 2015 article, authors Richard H. Glucksman, Glenn T. Barger, Jon A. Turigliatto, and David A. Napper of Chapman Glucksman Dean Roeb & Barger reported that the California Supreme Court granted the petition for review of the McMillin Albany decision: “The holdings in Liberty Mutual and McMillin Albany present a conflict of authority that the California Supreme Court has appropriately deemed worthy of review. The parties will now be permitted to file briefs on the merits and amicus briefs will certainly be submitted by the defense and plaintiff bars.” Read the full story... Read the court decision
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