CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

#9 CDJ Topic: Vallagio at Inverness Residential Condominium Association, Inc. v. Metropolitan Homes, Inc., et al.

December 30, 2015 — Beverley BevenFlorez-CDJ STAFF
David M. McClain of Higgins, Hopkins, McLain & Roswell, LLC reported on the Colorado Court of Appeals ruling in the above mentioned case regarding the Vallagio condominiums developed by Metro Inverness, LLC. McClain concluded, “As a builder, the moral of the story here is that you need not rely on the Colorado Legislature to protect your ability to arbitrate construction defect claims asserted against you by homeowners associations. All you need to do is to include within your declaration a valid and enforceable declarant consent provision requiring your consent to amend out of the declaration the arbitration requirement for construction defect claims.” Read the full story... Read the court decision
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Addenda to Construction Contracts Can Be an Issue

March 30, 2016 — Christopher G. Hill – Construction Law Musings
We’ve all been there. Your client either has a well drafted standard subcontract (with any luck in consultation with an experienced construction attorney) that it presents to its subcontractors and suppliers or your client is presented with a construction contract that has some provisions that it would prefer were either different or gone altogether. In the first of these scenarios, your client often gets push back from a subcontractor to change certain provisions. Such a response is not necessarily a bad thing depending on the provisions that the potential subcontractor may have. The construction contract documents will govern the way that the project moves forward and will be strictly enforced in Virginia and elsewhere so some early give and take is not unusual or unwanted. In the second scenario, your client is likely to be reading a fairly one sided document. The General Contractor has drafted the contract and is “north” of your client in the payment chain. Like it or not, they will in most instances leave it to you and your attorney to root out the particularly egregious on sided terms and seek to negotiate them to some sort of equality. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Construction Termination Part 2: How to Handle Construction Administration When the Contractor Is Getting Fired

August 01, 2023 — Melissa Dewey Brumback - Construction Law in North Carolina
If you’ve been working as a design professional for any length of time, you know that you must be a chameleon on the construction project. You need to “step into the skin” of both the Owner and the Contractor to determine who is at fault, and who should pay. You are usually the Initial Decision Maker (IDM), and so you have a duty under the AIA documents to act fairly and impartially in making those decisions. See AIA B101§3.6.2.4. Even if you are not under an AIA contract, you still have that duty if you are the IDM or handling construction administration for the project. More often than not, however, it will be the owner asking you to support its termination of the contractor “for cause.” Should you do so? Read the court decision
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Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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No Coverage for Home Damaged by Falling Boulders

March 08, 2021 — Tred R. Eyerly - Insurance Law Hawaii
The policy's earth movement exclusion barred coverage for the home damaged by large boulders rolling down from the hillside above. Sullivan v. Nationwide Affinity Ins. Co. of Am., 2021 U.S. App. LEZXIS 628 (10th Cir Jan. 11, 2021). Plaintiffs' home sustained extensive damage when two or three large builders rolled down a steep hillside and struck the home. The insurer, Nationwide, hired an engineering firm that determined the boulders were not influenced by meteorological conditions such as torrential rain or high winds. The report noted that rockfall hazards existed primarily due to an undercut sandstone outcrop, and evidenced by numerous rocks from rockfall events that scattered Plaintiffs' property. Based on the report, Nationwide denied coverage under the earth movement exclusion. The exclusion provided Nationwide did "not insure for loss caused directly or indirectly by . . . Earth Movement" and regardless of "whether or not the loss event results in widespread damage or affects a substantial area." The policy further defined "earth movement" to include "landslide . . . or any other earth movement including earth sinking, risking or shifting." Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Homeowner Has No Grounds to Avoid Mechanics Lien

September 01, 2011 — CDJ STAFF

The California Court of Appeals has rejected a motion by a homeowner in a dispute with the contractor who built an extension to his home. In McCracken v. Pirvulete, Mr. McCracken filed a mechanics lien after Mr. Pirvulete failed to complete payment. The matter went to trial with a series of exhibits that showed “the contractual relationship was strained and the parties disagreed over performance and payment.” As a result of the trial, the court awarded Mr. McCracken, the contractor, $1,922.22.

Mr. Pirvulete appealed, contending that the court had not allowed his daughter to act as a translator, that the court had failed to give him sufficient time to present his case, that the mechanics lien should have been dismissed, and several other claims, all before a formal judgment was issued. After the court formalized its judgment and rejected the appeal, Mr. Pirvulete appealed again.

The appeals court found that Mr. Pirvulete did not provide an adequate record for review. The court dismissed Mr. Pirvulete’s claims. The court notes that Mr. Pirvulete claimed that a request for a discovery period was denied, however, he has provided neither the request nor the denial. The trial court has no record of either.

Nor was there a record of a request that Mr. Pirvulete’s daughter provide translation. The court notes, “so far as we can glean from the record provided, the Register of Actions states, ‘Trial to proceed without Romanian Interpreter for Defendant; Daughter present to interpret if needed.’” Additionally, the court found that “there has been no showing that his facility with the English language is or was impaired in any way or that there was any portion of any proceeding, which he did not understand.”

Further, the appeals court found there were no grounds for a new trial, despite Mr. Pirvulete’s filings. The court concluded, “The owner has failed to provide a record adequate for review of most, if not all, of the claims of error. Some issues are not cognizable because they relate to entirely separate proceedings, and not the trial below. To the limited extent that the claims are examinable, the owner has made no showing of error.” The court affirmed the judgment of the lower court against Mr. Pirvulete.

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Patriarch Partners Decision Confirms Government Subpoenas May Constitute a “Claim” Under D&O Policy; Warns Policyholders to Think Broadly When Representing Facts and Circumstances to Insurers

January 08, 2019 — Michael S. Levine, Sergio F. Oehninger, & Joshua S. Paster - Hunton Andrews Kurth
The Second Circuit recently confirmed in Patriarch Partners, LLC v. Axis Insurance Co. that a warranty letter accompanying the policyholder’s insurance application barred coverage for a lengthy SEC investigation, which ripened into a “Claim” prior to the policy’s inception date. The opinion left intact the lower court’s finding that the SEC subpoena constituted a “demand for non-monetary relief” and thus qualified as a “Claim” under the directors and officers (D&O) insurance policy. Reprinted courtesy of Hunton Andrews Kurth attorneys Michael S. Levine, Sergio F. Oehninger and Joshua S. Paster Mr. Levine may be contacted at mlevine@HuntonAK.com Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Paster may be contacted at jpaster@HuntonAK.com Read the court decision
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California Trial Court Clarifies Application of SB800 Roofing Standards and Expert’s Opinions

February 18, 2020 — Scott Calkins & Anthony Gaeta - Collinsworth, Specht, Calkins & Giampaoli; Mark Chapman - Bert L. Howe & Associates, Inc.
Collinsworth, Specht, Calkins & Giampaoli partners Scott Calkins and Anthony Gaeta obtained a trial victory when the jury returned a 12-0 defense verdict against one plaintiff homeowner, and awarded the other homeowner less than $2,000, an amount well below the defendant’s pre-trial CCP 998 Offers to Compromise. One of the main issues in the case was the application of SB800 roofing standards. Plaintiffs’ roofing expert testified in deposition no water entered the structure or passed through a moisture barrier [Civ. Code §896(a)(4)], and no materials had fallen off the roof [§896(g)(11)]. In an attempt to circumvent the applicable performance standards, Plaintiffs argued Civ. Code §869(g)(3)(A), also known as the ‘useful life’ exception, applied because the various components of the roof (nailing pattern, tiles, vents, etc.) were installed in such a manner so as to reduce the useful life of the roof. Following pre-trial motions and objections made during Plaintiffs’ direct examination, the Court ruled Section 896(g)(3)(A) did not apply to a conventional roof, as it is not a “manufactured product” as defined in §896(g)(3)(C). Plaintiffs’ roofing claims were summarily dismissed and Plaintiffs’ expert was prevented from testifying. In contrast, the defense expert, Mark Chapman, was allowed to testify regarding his expert opinions as to the appropriate SB800 standard relative to each alleged defect and whether the standards were violated. The SB800 performance standards were included on the jury verdict form, and the jury found Mr. Chapman’s testimony compelling, which was a substantial factor in awarding only minor damages to one Plaintiff. For more information, contact Scott Calkins (scalkins@cslawoffices.com), Anthony Gaeta (ageta@cslawoffices.com) or Mark Chapman (mchapman@berthowe.com). Read the court decision
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Spearin Doctrine 100 Years Old and Still Thriving in the Design-Build Delivery World

January 09, 2019 — John P. Ahlers - Ahlers Cressman & Sleight PLLC
The Supreme Court’s ruling in United States v. Spearin, [1] also referred to as the Spearin doctrine, is a landmark construction decision.[2] The Spearin doctrine provides that the Owner impliedly warrants the information, plans and specifications which an Owner provides to a General Contractor. If a Contractor is bound to build according to plans and specifications prepared by the Owner, the Contractor will not be responsible for the consequences of defects in the plans and specifications. Read the court decision
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Reprinted courtesy of John P. Ahlers, Ahlers Cressman & Sleight PLLC
Mr. Ahlers may be contacted at john.ahlers@acslawyers.com

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