Cambridge Massachusetts Building Expert Directory

Pollution Exclusion Bars Coverage for Inverse Condemnation Action

June 02, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The South Carolina Court of Appeals found there was no coverage for an inverse condemnation action based upon the policy's pollution exclusion. South Carolina Ins. Reserve Fund v. E. Richland County Public Service District, 2016 S. C. App. LEXIS 32 (S.C. Ct. App. March 23, 2016). In 2010, Coley Brown filed a complaint against the East Richland County Public Service District ("District") for inverse condemnation, trespass, and negligence. The complaint alleged that the District had installed a sewage force main line and an air relief valve on Brown's street, and the valve released offensive odors on his property many times a day. The stench caused Brown to buy a new piece of property and move, but he was unable to sell the old property. The district tendered the complaint to the South Carolina Insurance Reserve Fund ("Fund"), but coverage was denied. 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

New York Climate Mobilization Act Update: Reducing Carbon Emissions and Funding Solutions

August 30, 2021 — Caroline A. Harcourt - Gravel2Gavel Construction & Real Estate Blog
In our June 16 CMA Update, we discussed how the New York City Climate Mobilization Act (CMA) will affect building owners and the market for CMBS mortgage loans (loans pooled and resold as commercial mortgage-backed securities). (For more information on C-PACE financing, see Sustainable Buildings and Development: Carbon Emissions and the Recent Climate Mobilization Act of New York City.) In this update, we will outline some of the funding solutions that are available to New York City building owners looking to retrofit their buildings in order to comply with the CMA’s requirements. Funding Solutions for Covered Building Owners The cost of retrofitting buildings to incorporate energy efficient features and to achieve compliance with the CMA can be daunting. Read the court decision
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Reprinted courtesy of Caroline A. Harcourt, Pillsbury
Ms. Harcourt may be contacted at caroline.harcourt@pillsburylaw.com

Contractors May be Entitled to Both Prompt Payment Act Relief and Prejudgment Interest for a Cumulative 24%!

August 22, 2022 — Margarita Kutsin - Ahlers Cressman & Sleight
The Washington Prompt Payment Act, in Ch. 39.76 RCW and in RCW 39.04.250, ensures that contractors and subcontractors are promptly paid for their performance on public works contracts. Where a government entity or a prime contractor wrongfully withholds undisputed amounts due, that government entity or prime contractor must pay interest at a rate of 12% per annum. Separately, prejudgment interest is awarded “based on the principle that a defendant ‘who retains money which he ought to pay to another should be charged interest upon it.’” Hansen v. Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662 (1986) (quoting Prier v. Refrigeration Eng’g Co., 74 Wn.2d 25, 34, 442 P.2d 621 (1968)). The purpose is to “compensate the plaintiff for the use value of the money representing liquidated or determinable damages.” Id. Read the court decision
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Reprinted courtesy of Margarita Kutsin, Ahlers Cressman & Sleight
Ms. Kutsin may be contacted at margarita.kutsin@acslawyers.com

It’s Time to Include PFAS in Every Property Related Release

June 01, 2020 — John Van Vlear & Gregory Tross - Newmeyer Dillion
While the federal government and states (including California) are working on establishing standards and how to manage the toxic chemicals known as PFAS (as defined below), certain states and banks are requiring testing for PFAS to approve no-further-action (NFA) determinations or to underwrite loans. PFAS do not easily fit within standard definitions of hazardous substances used in today’s agreements. Thus, if you want to ensure you and your successors are released for PFAS which later environmental testing may reveal, ensure such is specifically listed in your releases. What Are PFAS As depicted in the recent major-release movie Dark Waters, PFAS are a group of very stable man-made chemicals that are both toxic and ubiquitous. They are long-chain chemicals which means they do not naturally degrade easily. Reprinted courtesy of John Van Vlear, Newmeyer Dillion and Gregory Tross, Newmeyer Dillion Mr. Vlear may be contacted at john.vanvlear@ndlf.com Mr. Tross may be contacted at greg.tross@ndlf.com Read the court decision
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Hammer & Hand’s Top Ten Predictions for US High Performance Building in 2014

January 22, 2014 — Beverley BevenFlorez-CDJ STAFF
On Hammer & Hand’s blog, Sam Hagerman, Skylar Swinford, and Dan Whitmore discuss how they expect US high performance building policy to evolve in 2014. The three consultants and builders have built “some of the most notable high performance green building projects around, including Karuna House,” “Pumpkin Ridge Passive House,” and the “Glasswood Commercial Passive House Retrofit,” according to the blog. Hagerman and Whitmore also have served on the Passive House Alliance US board. Predictions cover topics such as Net Zero Energy to Net Positive Energy buildings, renewable energy productions, building energy codes, CO2 heat pumps, and more. Read the court decision
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Where-Forum Art Thou? Is the Chosen Forum Akin to No Forum at All?

May 30, 2022 — William Doerler - The Subrogation Strategist
Many courts enforce forum selection clauses in contracts between parties. In W. Bay Plaza Condo. Ass’n v. Sika Corp., No. 3D21-1834, 2022 Fla. App. LEXIS 1637 (W. Bay Plaza), the Court of Appeal of Florida, Third District (Court of Appeal) answered the question of whether a mandatory forum selection clause in a manufacturer’s warranty was enforceable as to a condominium association, who was a non-signatory. The trial court enforced the forum selection clause – calling for litigation in New Jersey rather than Florida – and the Court of Appeal affirmed the ruling. As stated in W. Bay Plaza, in late 2013 and early 2014, West Bay Plaza Condominium Association (W.B. Plaza Condo. Ass’n) contracted with Built Right Installers International Corporation, R.J. Miranda Consultants, Inc. and UCI Engineering Inc. (collectively, the Construction Defendants) to have repairs done to the exterior of the property. In 2016, Sika Corporation (Sika), a New Jersey corporation, gave a five-year warranty to W.B. Plaza Condo. Ass’n for three sealant products used to repair the garage at the property. In 2019, W.B. Plaza Condo. Ass’n sued the Construction Defendants for breach of contract and professional negligence. Subsequently, W.B. Plaza Condo. Ass’n amended its complaint and filed a claim against Sika, alleging that Sika breached its warranty because its products failed to provide a watertight barrier. Sika filed a motion to dismiss the action, alleging that Florida was an improper venue because its’ warranty contained a mandatory forum selection clause. W.B. Plaza Condo. Ass’n argued that it was not bound by the forum selection clause because it was a non-signatory to the warranty and, even if it was bound by the clause, there were compelling reasons not to enforce it. Read the court decision
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Reprinted courtesy of William Doerler, White and Williams LLP
Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com

Where Breach of Contract and Tortious Interference Collide

July 18, 2022 — Christopher G. Hill - Construction Law Musings
Claims for breach of contract are numerous in the construction law world. Without these claims we construction attorneys would have a hard time keeping the doors open. A 2021 case examined a different sort of claim that could arise (though, “spoiler alert” did not in this case) during the course of a construction project. That type of claim is one for tortious interference with business expectancy. In Clark Nexsen, Inc. et. al v. Rebkee, the U. S. District Court for the Eastern District of Virginia gave a great explanation of the law of this type of claim in analyzing the following basic facts: In 2018, Clark Nexsen, Inc. (“Clark”) and MEB General Contractors, Inc. (“MEB”) responded to Henrico County’s (“Henrico”) Request for Proposals (“RFP”) for the design and construction of a sport and convocation center (the “Project”). Henrico initially shortlisted Clark and MEB as a “design-build” team for the Project, but later restarted the search, issuing a second RFP. Clark and MEB submitted a second “design-build” proposal, but Henrico selected Rebkee Co. (“Rebkee”) for certain development aspects of the Project. MEB also submitted proposals to Rebkee, and Rebkee selected MEB as the design-builder for the Project. MEB, at Rebkee’s request, solicited proposals from three design firms and ultimately selected Clark as its design partner. From December 2019 to May 2020, Clark and MEB served as the design-build team to assist Rebkee in developing the Project. In connection therewith, Clark developed proprietary designs, technical drawings, and, with MEB, several cost estimates. In February 2020, MEB submitted a $294,334.50 Pay Application to Rebkee for engineering, design, and Project development work. Rebkee never paid MEB. Henrico paid MEB $50,000.00 as partial payment for MEB’s and Clark’s work. MEB then learned that Rebkee was using Clark’s drawings to solicit design and construction proposals from other companies. On July 23, 2020, Rebkee told MEB that Henrico directed it to cancel the design-build arrangement with MEB and Clark and pursue a different planning method. MEB and Clark sued and Rebkee for, among other claims, tortious interference with a business expectancy. Rebkee moved to dismiss the tortious interference claim. 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

Did the Building Boom Lead to a Boom in Construction Defects?

May 10, 2013 — CDJ STAFF
The height of the building boom is now almost a decade past but some are saying that the results of the rush to get housing built during the profitable market are still with us. The Wall Street Journal reports on the rise of construction defect lawsuits as these homes have aged, some not too gracefully. One couple thought they were hearing acorns falling on their roof. They were less happy to find that the source of the noises was their house slumping on one end, leading to cracks throughout the house. Their neighbors had similar problems and they are now part of a lawsuit against the builder. The expenses to repair the houses could total millions of dollars. Some have suggested that during the building boom both building and inspection standards were more lax in order to keep up with the pace of building. Criterium Engineers, a building-inspection firm, estimates that 17% of new homes built in 2006 had at least two significant defect, while only 15% of those built in 2003 fit these criteria. Meanwhile others attribute the rise in construction defect lawsuits to home inspector and construction defect attorneys looking for new territories to exploit. Read the court decision
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