CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

OSHA Releases COVID-19 Guidance

June 15, 2020 — L. Stephen Bowers & Joshua Tumen - White and Williams LLP
The United States Department of Labor’s Occupational Safety and Health Administration (OSHA) ensures safe and healthful working conditions for employees by setting and enforcing standards and by providing training, outreach, education and assistance. The COVID-19 outbreak has increased demand for N95 filtering face piece respirators (N95 FFRs), limiting availability for workers in healthcare and emergency response. On April 3, 2020, OSHA issued interim guidance for employers to combat the supply shortages of N95 FFRs and to comply with the respiratory protection standard (29 CFR § 1910.134). This guidance will remain in effect until further notice and applies in all industries. Employers must continue to manage their respiratory protection programs and be mindful of N95 FFR shortages. Specifically, employers should identify and evaluate respiratory hazards in the workplace, and develop and implement written respiratory protection programs. Businesses should reassess their engineering controls, work practices, and administrative controls to identify any changes they can make to decrease the need for N95 FFRs. Some examples provided in the guidance include using portable local exhaust systems or moving operations outdoors. Employers may also consider temporarily suspending non-essential operations, to the extent such operations are not already suspended due to state mandates. Reprinted courtesy of L. Stephen Bowers, White and Williams LLP and Joshua Tumen, White and Williams LLP Mr. Bowers may be contacted at bowerss@whiteandwilliams.com Mr. Tumen may be contacted at tumenj@whiteandwilliams.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Ninth Circuit Rules Supreme Court’s Two-Part Test of Implied Certification under the False Claims Act Mandatory

May 13, 2019 — Meredith Thielbahr - Gordon & Rees Construction Law Blog
For those contractors in the government arena, read on. The False Claims Act (“FCA”) was enacted to deter knowingly fraudulent actions by contractors which resulted in a loss of property to the Government. Intent to defraud with resulting financial hardship was required. Contrary to popular misconception, the statute was not designed to punish all false submissions to the Government simply because those submissions, or claims, are later found to be false. The statute’s inclusion of the requisite element of knowledge is consistent with this notion:

1. A defendant must submit a claim for payment to the Government;
2. the claim must be false or fraudulent;
3. the defendant must have known the claim was fraudulent when it was submitted (also known as scienter); and
4. the claim must have caused the Government to pay out money.

See 31 U.S.C. § 3729(a). Despite these explicit elements (in addition to common law elements of fraud), over the last two decades, contractors have seen ever-expanding theories of FCA recovery presented by qui tam plaintiffs and the Government. For example, under the FCA, the false “claim” evolved over time: the claim no longer needs to be an express false claim (i.e. the truthfulness of the claim is a direct condition of payment); the claim can be “implied” misrepresentation or “half-truth”. Read the court decision
Read the full story...
Reprinted courtesy of Meredith Thielbahr, Gordon & Rees Scully Mansukhani
Ms. Thielbahr may be contacted at mthielbahr@grsm.com

---

New York’s Highest Court Reverses Lower Court Ruling That Imposed Erroneous Timeliness Requirement For Disclaimers of Coverage

June 18, 2014 — Robert F. Walsh and Paul A. Briganti – White and Williams LLP
On June 10, 2014, the New York Court of Appeals (the state’s highest court) issued a unanimous decision in KeySpan Gas East Corp. v. Munich Reinsurance America, Inc. (No. 110, June 10, 2014), reversing a lower court decision which had erroneously imposed on insurers a duty to disclaim coverage for property damage claims as soon as possible or risk waiving their coverage defenses. White and Williams represented one of the insurance company defendants in the action. The case involved an action against three excess insurers for insurance coverage for underlying environmental claims arising from Manufactured Gas Plant sites. Upon receiving notice of the underlying claims, the three insurers reserved their rights to deny coverage on various grounds, including late notice of an occurrence, pending an investigation. The insurers ultimately denied coverage on the basis of late notice several years later based on information developed in discovery in the litigation. The policyholder/plaintiff KeySpan argued that the insurers had unreasonably delayed in issuing their disclaimers and that there was a triable issue of fact on whether such a delay amounted to a waiver of the late notice defense. Reprinted courtesy of Robert F. Walsh, White and Williams LLP and Paul A. Briganti, White and Williams LLP Mr. Walsh may be contacted at walshr@whiteandwilliams.com; Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Read the court decision
Read the full story...
Reprinted courtesy of

---

Pollution Exclusion Bars Coverage for Damage Caused by Tar Escaping From Roof

October 27, 2016 — Tred R. Eyerly – Insurance Law Hawaii
The insurer prevailed on summary judgment establishing it had no duty to defend the insured roofing contractor for damage caused by tar escaping from a roof. Mesa Underwriters Spec. Ins. Co. v. Myers, 2016 U.S. Dist. LEXIS 108444 (W.D. Ohio Aug. 16, 2016). Myers contracted to do roofing work for Sireco III LLC. Myers removed stones from the roof, patched all bad sections, and sealed the roof. To seal the roof, Myers used a roofing-tar sealant. The substance was a skin irritant and harmful or fatal if swallowed. Myers expected the sealant to harden within twenty-four hours. When rain hit the area eleven days later, however, it washed the sealant off the roof and into the downspouts. It then flowed into the city's sewer system and eventually into Lake Erie. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

---

Nicholas A. Thede Joins Ball Janik LLP

October 02, 2015 — Beverley BevenFlorez-CDJ STAFF
As of September 1st, Nicholas A. Thede, an insurance recovery litigator, joined Ball Janik LLP’s Insurance Recovery, Construction Defect, and Litigation practices. According to the release, Mr. Thede “has advised clients in a wide variety of insurance disputes, including claims arising under general liability, professional liability, directors and officers, employee dishonesty, homeowners, and automotive insurance policies. Thede has successfully represented clients in trials, arbitrations, and appeals, and has obtained numerous favorable settlements for his clients. He has handled insurance disputes throughout Oregon and Washington, along with several other jurisdictions. Mr. Thede has substantial experience litigating claims for insurance ‘bad faith’ and recovery of attorney fees in a variety of settings.” Ball Janik LLP is headquartered in Portland, Oregon. Read the court decision
Read the full story...
Reprinted courtesy of

---

Court Throws Wet Blanket On Prime Contractor's Attorneys' Fees Request In Prompt Payment Case

September 03, 2015 — Steven M. Cvitanovic & Abigail E. Lighthart – Haight Brown & Bonesteel LLP
Prompt payment penalty cases do not come around very often, but when they do, there is bound to be fireworks. In James L. Harris Painting & Decorating, Inc. v. West Bay Builders, Inc., et al. (No. C072169, filed 8/27/15), the California Court of Appeal for the Third Appellate District upheld the trial court's discretion to not award prevailing party attorneys' fees to the party who won a prompt payment dispute. California Business and Professions Code §7108.5 and Public Contract Code §§7107 and 10262 are the mechanisms for obtaining prompt payment relief in California. As shown by the outcome, it is possible to win and lose at the same time. West Bay Builders, Inc. (“West Bay”) was the prime contractor on a school construction project for Stockton Unified School District. West Bay entered into a subcontract agreement with James L. Harris Painting & Decorating, Inc. (“Harris”) on the project. During construction there were disagreements between West Bay and Harris regarding the contractual scope of work, and Harris performed work it believed was outside the contract, believing it would be paid for the additional work. After West Bay refused to pay for the additional work, Harris left the project, and West Bay hired another subcontractor to complete the work. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and Abigail E. Lighthart, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Ms. Lighthart may be contacted at alighthart@hbblaw.com Read the court decision
Read the full story...
Reprinted courtesy of

---

ASCE Statement on House Failure to Pass the Infrastructure Investment and Jobs Act

October 04, 2021 — Tom Smith - American Society of Civil Engineers
The following is a statement by Tom Smith, Executive Director, American Society of Civil Engineers (ASCE): WASHINGTON, DC. – Today, American families and businesses are paying the price while the House plays politics and fails to pass the bipartisan Infrastructure Investment and Jobs Act (IIJA), a historic piece of legislation that would have monumental impacts on the economy, public safety, global competitiveness, and each American's well-being. After decades of kicking the can down the road on meaningful infrastructure legislation, Congress is missing an extraordinary chance to reverse this unsustainable trend with passage of the IIJA, instead choosing to allow critical projects to be delayed. This legislation was passed in a strong vote by the Senate on August 10th, and almost two months later, it sits on the sidelines as the federal program for transit, roads, and bridges expired on September 30th and projects come grinding to a halt. While other countries are making investments in their future, we are letting politics steal this opportunity to move forward. It does not have to be this way. This comprehensive bill would bring relief to communities facing strained power grids, aging bridges, leaking water pipes, and spotty broadband. American families do not want to have to wonder if their power will stay on in the next storm, if the bridge connecting their community will close for emergency repairs, or if a week of virtual school means their child will miss out. We urge the House to pass this bipartisan, commonsense legislation today to create jobs, make goods and services move more quickly and reliably, and make American communities more climate-resilient. Our infrastructure bill has come due, and now is the time to act. ABOUT THE AMERICAN SOCIETY OF CIVIL ENGINEERS Founded in 1852, the American Society of Civil Engineers represents more than 150,000 civil engineers worldwide and is America's oldest national engineering society. ASCE works to raise awareness of the need to maintain and modernize the nation's infrastructure using sustainable and resilient practices, advocates for increasing and optimizing investment in infrastructure, and improve engineering knowledge and competency. For more information, visit www.asce.org or www.infrastructurereportcard.org and follow us on Twitter, @ASCETweets and @ASCEGovRel. Read the court decision
Read the full story...
Reprinted courtesy of

---

There's No Place Like Home

March 02, 2020 — Brian Brenner - Engineering News-Record
Two things that generally do not go well together, bridges and tornadoes, collided with unfortunate results on July 21, 2003. On that date, a tornado struck the Kinzua viaduct in northwestern Pennsylvania. The old bridge structure already had deteriorated foundation supports, which were then under repair. The tornado lifted parts of the bridge off its foundation, and more than half of the structure collapsed. Brian Brenner, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

---