Cambridge Massachusetts Building Expert Directory

The Difference Between Routine Document Destruction and Spoliation

October 18, 2021 — Steven A. Neeley - Construction Executive
In today’s world, there is a tendency to believe that everything must be preserved forever. The common belief is that documents, emails, text messages, etc. cannot be deleted because doing so may be viewed as spoliation (i.e., intentionally destroying relevant evidence). A party guilty of spoliation can be sanctioned, which can include an adverse inference that the lost information would have helped the other side. But that does not mean that contractors have to preserve every conceivable piece of information or data under all circumstances. There are key differences between routine document destruction (when done before receiving notice of potential claims or litigation) and spoliation. The Armed Services Board of Contract Appeals decision in Appeal of Sungjee Constr. Co., Ltd., ASBCA Nos. 62002 and 62170 (Mar. 23, 2021) provides a good reminder. There, Sungjee challenged its default termination under a construction contract at Osan Air Base in South Korea. Sungjee argued that the government denied it access to the site for 352 days (out of a 450-day performance period) by refusing to issue passes that were needed to access the base. The government argued that it had issued the passes, but it could not produce them to Sungjee in discovery because they had been destroyed as part of a routine document destruction policy. The base security force issued hard copy passes and entered the information in a biometric system. The government was able to produce the biometric system data but not the hard copy passes because they were destroyed each year. Sungjee argued the government was guilty of spoliation and moved for sanctions. It asked the Board to draw an adverse inference that the passes would have shown that the government had not issued proper passes on a timely basis, which delayed Sungjee’s performance. The Board denied Sungjee’s motion for several reasons. Reprinted courtesy of Steven A. Neeley, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Neeley may be contacted at steve.neeley@huschblackwell.com

Product Liability Alert: “Sophisticated User” Defense Not Available by Showing Existence of a “Sophisticated Intermediary”

November 26, 2014 — R. Bryan Martin & Kristian B. Moriarty - Haight Brown & Bonesteel LLP
In Gottschall v. Crane Co., (No. A136516, Filed 10/8/2014, published 10/22/2014), the Court of Appeal, First Appellate District, held a company that manufactured and sold asbestos-containing products could not prevail under the “sophisticated user” doctrine based on the contention that a “sophisticated intermediary” existed, in an action brought by the end user of the products. Decedent Robert Gottschall worked in a variety of shipyards for the U.S. Navy between 1957 and 1989. Defendant Crane Co. (“Crane”) manufactured and sold products containing asbestos to the Navy during that time. During his work at the various shipyards, decedent was exposed to asbestos and contracted mesothelioma. Reprinted courtesy of R. Bryan Martin, Haight Brown & Bonesteel LLP and Kristian B. Moriarty, Haight Brown & Bonesteel LLP Mr. Martin may be contacted at bmartin@hbblaw.com; Mr. Moriarty may be contacted at kmoriarty@hbblaw.com Read the court decision
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Final Rule Regarding Project Labor Agreement Requirements for Large-Scale Federal Construction Projects

January 29, 2024 — Aaron C. Schlesinger & Julia Loudenburg - Peckar & Abramson, P.C.
Beginning on January 22, 2024, in compliance with President Biden’s February 4, 2022 Executive Order, 14603, federal construction projects with a total estimated cost of $35 million are required to utilize a project labor agreement (“PLA”) unless the contracting agency grants an exception. The Federal Register estimates that this rule will impact approximately 119 IDIQ contracts each year; these contracts have an average award value of about $114 million. The White House claims the PLAs will improve projects by:

Eliminating project delays from labor unrest, such as strikes;
Creating dispute resolution procedures and cooperation for labor-management disputes, such as those over safety;
Including provisions “to support workers from underserved communities and small businesses”;
Helping to create a steady pipeline of workers for federal projects; and
Promoting competition on government contracts so that all builders, even those who are non-union, can bid on jobs that require a PLA.

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Reprinted courtesy of Aaron C. Schlesinger, Peckar & Abramson, P.C.
Mr. Schlesinger may be contacted at aschlesinger@pecklaw.com

4 Steps to Take When a Worker Is Injured on Your Construction Site

March 27, 2023 — Zachary Perecman - Construction Executive
The construction industry continues to be one of the fastest-growing labor trades. According to the Center for Construction Research and Training, since 2019, 11.4 million U.S. workers have been employed in construction, a 25% increase from 2011. Amid this growth, the industry has remained one of the most dangerous, and workers are often at higher risk of injuries and deaths due to occupational incidents. According to the U.S. Bureau of Labor Statistics, there are 150,000 injuries on construction work sites annually. Under Occupational Health and Safety Administration (OSHA) law, employers have a responsibility to provide a safe work environment. That includes providing a workplace that is free of serious recognized hazards. Despite best efforts in implementing risk-mitigation and safety protocols, employers must be prepared with an incident procedure should an incident occur on a jobsite. Taking immediate, clear actions can impact the severity and outcome of injuries from a workplace incident. With this in mind, employers should take the lead in implementing safety procedures for injuries on construction sites and should inform all safety site managers and workers of the steps that should be taken. Reprinted courtesy of Zachary Perecman, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Detroit Showed What ‘Build Back Better’ Can Look Like

May 10, 2021 — Rip Rapson - Bloomberg
American cities stand at a precipice. Burdened by an overwhelming public health crisis, drained of resources by economic stagnation and torn apart by racial injustice and unrest, cities are confronting the reality that conventional formulas of municipal finance and practices of working cannot sustain our urban places. The significance of this moment was not lost on the Biden-Harris administration, which quickly advanced an ambitious mandate commensurate with the challenge: a domestic Marshall Plan called Build Back Better. Already, the first prong — the $1.9 trillion American Rescue Plan — has helped shore up city budgets, restore desperately needed funding for public transportation and keep businesses open and families in homes. The second leg, the $2 trillion American Jobs Plan, represents a bold shift from short-term recovery to long-term transformation. Read the court decision
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Reprinted courtesy of Rip Rapson, Bloomberg

Eleventh Circuit Affirms Jury Verdict on Covered Property Loss

September 06, 2023 — Tred R. Eyerly - Insurance Law Hawaii
The Eleventh Circuit affirmed the district court's denial of a motion for a new trial after the jury determined the insurer owed policy benefits for hurricane damage to the insured's property. AM Grand Court Lakes LLC v. Rockhill Ins. Co., 2023 U.S. App. 13902 (11th Cir. June 5, 2023). AM Grand owned a group of buildings that were operated as an assisted living facility. The facility comprised five buildings, each of which was five stories tall. Hurricane Irma caused damage to the property. AM Grand hired a public aduster, Five Star Claims Adjustoing, to assist with its claim. Five Star concluded that the roofs of all five buildings had been damaged in the hurricane and needed to be replaced. The estimated cost was approximately $1,200,000 to replace all the roofs. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Traub may be contacted at rtraub@tlsslaw.com

London Penthouse Will Offer Chance to Look Down at Royalty

March 05, 2015 — Zainab Fattah – Bloomberg
(Bloomberg) -- A penthouse “overlooking the Queen’s balcony” will cap a London luxury apartment project planned near Buckingham Palace, according to its Abu Dhabi-based owner. The 10,000 square-foot (929 square-meter) apartment at No. 1 Palace St. across the street from the royal residence will probably fetch about 60 million pounds ($92 million), Jassim Alseddiqi, chief executive officer of Abu Dhabi Financial Group LLC, said in an interview in the capital of the United Arab Emirates on Monday. Read the court decision
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Reprinted courtesy of Zainab Fattah, Bloomberg
Ms. Fattah may be contacted at zfattah@bloomberg.net

Dynamics of Managing Professional Liability Claims for Design Builders

February 21, 2022 — Eric M. Clarkson - Saxe Doernberger & Vita, P.C.
Nearly half of America’s construction projects are now design-build in a continuing shift. As a result, contractors are taking on more professional liability (“PL”) risk than ever before, and the risk management landscape is changing. There are unique challenges to managing PL risks and claims. Specifically, PL coverage requires proactive claim management and project coordination. As a result, design-build projects should involve significant collaboration amongst all of the parties involved in the project. Claims Made Coverage Considerations PL policies typically provide three types of coverage:

Professional Liability covers defense and indemnity against claims arising out of acts or omissions of the insured in rendering a defined set of professional services –including construction management, project management, and design work in the design build context.

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Reprinted courtesy of Eric M. Clarkson, Saxe Doernberger & Vita, P.C.
Mr. Clarkson may be contacted at EClarkson@sdvlaw.com

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES