CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Additional Insured Is Covered Under On-Going Operations Endorsement Despite Subcontractor's Completion of Work

December 20, 2017 — Tred Eyerly - Insurance Law Hawaii
Although the homeowners did not own their homes when the subcontractors completed their work, the general contractor was still covered as an additional insured for the homeowners' suits based on the ongoing operations endorsement in the subcontractors' policies. McMillin Mgmt. Servs. v. Fin. Pac. Ins. Co., 2017 Cal. App. LEXIS 1000 (Cal. Ct. App. Nov. 14, 2017). McMillin was the developer and general contractor for the project. Among the subcontractors were Martinez Construction Concrete Contractor, Inc. and Rozema Corporation. Martinez performed concrete flatwork between 2003 and November 2005. Rozema performed lath and stucco work between March 2003 and October 2005. Lexington issued CGL policies to Martinez and Rozema. McMillin was an additional insured under both policies, "but only with respect to liability arising out of your [i.e., Martinez's or Rozema's] ongoing operations performed for [McMillin]." An exclusion provided that the insurance did not apply to property damage occurring after the insured subcontractor had completed operations on behalf of the additional insured. Read the court decision
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Reprinted courtesy of Tred Eyerly, Insurance Law Hawaii
Mr Eyerly may be contacted at te@hawaiilawyer.com

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Scary Movie: Theatre Developer Axed By Court of Appeal In Prevailing Wage Determination Challenge

July 19, 2017 — Steven M. Cvitanovic & Omar Parra - Haight Brown & Bonesteel LLP
The First Appellate District of the California Court of Appeal recently held that the construction of a movie theater, which was performed in furtherance of a city’s redevelopment agenda, constitutes a “public work” within the meaning of California’s prevailing wage law. Cinema West, LLC v. Christine Baker, No. A144265, (Cal. Ct. App. June 30, 2017). Like many California cities, the City of Hesperia (the “City”) endeavored to revitalize its downtown. In furtherance of this goal, the City acquired vacant property in its downtown with the hope of turning it into a new city hall, a public library, and “complimentary retail, restaurant, and entertainment establishments.” After completing construction of the civic buildings, the City entered into discussions with Cinema West, LLC (“Cinema West”) for the construction of a “state-of-the-art cinema experience.” Under the agreement with the City, Cinema West agreed to purchase the property from the City at fair market value, obtain financing for the construction costs, and build and maintain the movie theater. The City, on the other hand, agreed to provide Cinema West with an interest-bearing loan forgivable over ten years, and to construct an adjacent parking lot “for use by Cinema West... as a parking lot for the movie theater.” The City, moreover, agreed to issue Cinema West a one-time payment as consideration for the operating covenant. Reprinted courtesy of Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and Omar Parra, Haight Brown & Bonesteel LLP Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com Mr. Parra may be contacted at oparra@hbblaw.com Read the court decision
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Investigation Continues on Children Drowning at Construction Site

August 13, 2014 — Beverley BevenFlorez-CDJ STAFF
Two months ago, in Hobart, Illinois, two young boys (brothers) “drowned in an unsecured, excavated pit that filled with water” on a site owned by Goldschmidt Construction Services LLC of Hobart. The Post-Tribune reported that “Police Chief Richard Zormier said the department is waiting on reports from other agencies as it continues to investigate circumstances surrounding” the accident. “We want to be thorough. The young boys deserve it. Their family deserves it,” Zormier told the Post-Tribune. The family of the victims has filed a $60 million lawsuit against Goldschmidt Construction. Read the court decision
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Around the State

March 27, 2019 — Richard Glucksman & Chelsea Zwart – Construction Claims Magazine
In late 2018, Governor Jerry Brown signed two potentially impactful Senate bills relating to the construction of apartment buildings. These bills, discussed further below, were introduced, in part, in response to the Berkeley balcony collapse in June 2015, which was determined by the California Contractors State License Board to have been caused by the failure of severely rotted structural support joists—the repairs of which were deferred by the property manager despite indications of water damage. In addition, 2018 saw the passage of California’s updated 2019 Building Energy Efficiency Standards. The new standards, which take effect in 2020, require, in part, the installation of solar systems on certain homes. The goal of the standards is to significantly decrease the energy usage in new homes while contributing to California’s greenhouse gas emissions reduction plans. Relatedly, new legislation, effective in 2019, aims to increase consumer protections for homeowners purchasing solar energy systems. Reprinted courtesy of Richard H. Glucksman, Chapman, Glucksman, Dean, Roeb & Barger and Chelsea Zwart, Chapman, Glucksman, Dean, Roeb & Barger Mr. Glucksman may be contacted at rglucksman@cgdrblaw.com Ms. Zwart may be contacted at czwart@cgdrblaw.com Read the court decision
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First Look at Long List of AEC Firms Receiving PPP Loans

July 20, 2020 — Tom Ichniowski & Scott Blair - Engineering News-Record
Thousands of construction and design firm from all parts of the U.S. appear on lists of companies that have received federal Paycheck Protection Program forgivable loans, according to federal documents just made public. Reprinted courtesy of Tom Ichniowski, Engineering News-Record and Scott Blair, Engineering News-Record Mr. Ichniowski may be contacted at ichniowskit@enr.com Mr. Blair may be contacted at blairs@enr.com Read the full story... Read the court decision
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Exculpatory Provisions in Business Contracts

May 30, 2018 — David Adelstein - Florida Construction Legal Updates
An exculpatory provision in a contract is a provision that relieves one party from liability for damages. It shifts the risk of an issue entirely to the other party. Such a provision is generally drafted by the party preparing the contract that is looking to eliminate or disclaim liability associated with a particular risk, oftentimes a risk within their control. These provisions are also known as limitation of liability provisions because they do exactly that — limit liability as to a risk. For this reason, they can be useful provisions based on the context of certain risks, and are provisions that are included in business contracts (such as construction contracts). While such clauses are disfavored, they are enforceable if they are drafted clearly, unambiguously, and unequivocally. If they are unclear, ambiguous, or equivocal, they will construed against enforcement. See Obsessions In Time, Inc. v. Jewelry Exchange Venture, LLP, 43 Fla.L.Weekly D1033a (Fla. 3d DCA 2018) (finding exculpatory clause in lease ambiguous and, therefore, unenforceable as to lessor looking to benefit from the exculpatory clause). Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

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State Audit Questions College Construction Spending in LA

August 17, 2011 — CDJ STAFF

A state audit of the Los Angeles Community College District found many problems with their construction spending. Their report, as described in the Los Angeles Times, found construction money spent for other purposes, such as promotional photography and public relation tours, $28.3 million spent on projects that were later cancelled, and oversight committees that provided no oversight.



Earlier this year, the LA Times ran a series of articles detailing problems with the Los Angles Community College District’s construction program. The LA Times reported that the State Controller’s audit reached many of the same conclusions.



The Community College District disputed the findings.

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California Court Invokes Equity to Stretch Anti-Subrogation Rule Principles

June 18, 2019 — Gus Sara & William L. Doerler - The Subrogation Strategist
In Western Heritage Ins. Co. v. Frances Todd, Inc. 2019 Cal. App. Lexis 299, the Court of Appeals of California, First Appellate District, addressed whether a commercial condominium association’s carrier could subrogate against the tenants (aka lessees) of one of its member unit owners. After examining the condominium association’s declarations, as well as the lease terms between the owner and the lessees, the court held that the association’s carrier could not subrogate against the lessees because they were implied co-insureds on the policy. To reach its decision, the court explained that an insurer steps into the shoes of its insured, not the party with whom it is in privity. Although the first-party property portion of the association’s insurance policy did not, as required by the association’s declarations, have the owner listed as an additional named insured, the court held that it would be inequitable to treat the association as the sole insured for purposes of determining Western Heritage’s right to bring a subrogation action. In Western Heritage, William R. de Carion d/b/a Surfwood Properties (de Carion or Lessor), owned a commercial unit within a multi-unit commercial building. The building was managed by the East Shore Commercial Condominiums Owners’ Association (the Association). As a unit owner, de Carion was a member of the Association. The Association’s Declarations of Codes, Covenants and Restrictions (CC&Rs) required the Association to procure fire insurance for the commercial units by adding the unit owners as additional named insureds. The CC&Rs also prohibited owners and their “tenants” from procuring their own fire insurance policies for the premises. In 2013, de Carion leased his commercial space to Frances Todd, Inc. d/b/a The Wooden Duck, Eric Todd Gellerman and Amy Frances Feber (Lessees). Reprinted courtesy of Gus Sara, White and Williams LLP and William L. Doerler, White and Williams LLP Mr. Sara may be contacted at sarag@whiteandwilliams.com Mr. Doerler may be contacted at doerlerw@whiteandwilliams.com Read the court decision
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