Cambridge Massachusetts Building Expert Directory

Hundreds of Coronavirus Coverage Cases Await Determination on Consolidation

September 21, 2020 — Tred R. Eyerly - Insurance Law Hawaii
On July 30, 2020, the Judicial Panel on Multi-District Litigation (JPML) heard oral argument on the potential consolidation of all federal cases involving business interruption coverage relating to coronavirus and shut-down orders. A decision will be rendered in the near future. Meanwhile, many cases are on hold, waiting for a determination on consolidation. One such case is Pigment Inc. v. Hartford Fin. Servs. Group, 2020 U.S. Dist. LEXIS 133230 (S.D. Cal. July 27, 2020), where the court granted a stay pending a decision by the JPML. The case is a class action based on denial of coverage under business interruption insurance. Plaintiff's case alleged a bad faith denial that risked the permanent closure of its business due to unexpected temporary shutdowns from the COVID-19 pandemic. Plaintiff sought a stay pending the decision of the JPML. The court considered the possible damage which could result from granting a stay, the hardship which a party could suffer in being required to go forward, and the orderly course of justice measured by the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Surplus Lines Carrier Can Force Arbitration in Louisiana Despite Statute Limiting Arbitration

February 12, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the surplus lines insurer's motion to compel arbitration despite a Louisiana statute barring policies from depriving courts of jurisdiction in cases against insurers. Queens Beauty Supply, LLC v. Indep.Specialty Ins. Co., 2023 U.S. Dist. LEXIS 195372 (E.D. La. Oct. 31, 2023). Hurricane Ida damaged property leased by Queens. Queens filed suit against its insurer, Independent Specialty Insurance Company (ISIC) for breath of contract and bad faith for failing to pay the full amount Queens contends it was owed for the damage. ISIC moved to compel arbitration. Queens argued that ISIC waived its right to enforce the policy's arbitration clause by its actions before the court, including failing to opt-out of the settlement program adopted for Hurricane Ida cases. The court disagreed, ISIC had taken no overt act that evidenced a desire to resolve the instant dispute through litigation rather than arbitration. ISIC asserted as an affirmative defense that Queens's claims were barred by the arbitration clause in the policy. ISIC then participated in the settlement program for Hurricane Ida cases, which evidences a desire to settle the dispute, not to resolve it by litigation. Therefore, ISIC had not waived its right to arbitrate. Read the court decision
Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

The Brooklyn Condominium That’s Reinventing Outdoor Common Space

October 24, 2022 — Alexandra Lange - Bloomberg
Courtyard apartments have a long history in the US, particularly in temperate climes, where shaded outdoor corridors and centralized playspaces can be year-round amenities. New York City, however, has only selectively embraced this approach, with private yards and public parks taking up the slack. A new 18-unit condominium, 450 Warren — one of four planned Brooklyn collaborations between architects SO-IL and developers Tankhouse — aims to change that relationship, while also twisting the idea of common outdoor space into something that gets used. Rather than creating one large courtyard, with the open space protected from the street by an L-shaped plan, SO-IL chopped up the outdoor amenities, betting that smaller, more carefully shaped and planted terraces would be more popular than a large undifferentiated expanse of grass. The building’s plan reads as three towers connected by curvy concrete walkways. The building sits across the street from the Gowanus Houses, a public housing development, completed in 1949 with towers of up to 14 stories. The area was rezoned for denser mixed-use development in 2021, but when SO-IL and Tankhouse were developing the plans, regulations limited building heights to a maximum of five stories. Read the court decision
Read the full story...
Reprinted courtesy of Alexandra Lange, Bloomberg

Another Worker Dies in Boston's Latest Construction Accident

June 20, 2022 — Scott Van Voorhis - Engineering News-Record
Boston Police and the US Occupational Safety and Health Administration are investigating a June 9 early morning construction accident that killed a worker in Boston’s Seaport district— the latest in a spate of fatalities at worksites across the city's metro area during the past 18 months. Reprinted courtesy of Scott Van Voorhis, Engineering News-Record ENR may be contacted at enr@enr.com Read the full story... Read the court decision
Read the full story...
Reprinted courtesy of

Project-Specific Policies and Products-Completed Operations Hazard Extensions

May 31, 2021 — Jeremiah M. Welch - Saxe Doernberger & Vita
1. Understanding the “Products-Completed Operations Hazard” ISO commercial general liability (“CGL”) policies use the term “products-completed operations hazard” (“PCOH”) to define a category of risk which is treated specially by certain exclusions within the policy and often subject to separate limits of insurance. In construction, we think about PCOH as being about coverage for completed work. Bodily injury and property damage arising out of completed work is a significant construction risk. Most construction contracts include warranty and indemnity obligations for completed work. All states allow lawsuits to be brought alleging bodily injury or property damage because of completed work based on common law. Contract and common law claims are subject to statutes of limitation – laws which define the time in which suits must be brought. Most states provide exceptions to their statutes of limitation for common law claims – the most common example is an extension to file a lawsuit based on a latent defect until the defect is discovered. Most states also have “statutes of repose” – laws that set a date after which suit may no longer be brought, no matter what the circumstances are. A construction contractor, therefore, has potential liability until the statute of repose period has expired. Thus, a contractor looks to ensure that it has coverage for the PCOH for its full statute of repose liability period. Read the court decision
Read the full story...
Reprinted courtesy of Jeremiah M. Welch, Saxe Doernberger & Vita
Mr. Welch may be contacted at JWelch@sdvlaw.com

The Double-Breasted Dilemma

July 18, 2022 — Lauren E. Rankins & Saloni Shah - ConsensusDocs
What Is A Double-Breasted Operation? A double-breasted operation is when a firm has two entities, and one entity performs work under collective bargaining agreements and the other does not. While this type of operation is not outright prohibited, it is often subject to a variety of challenges and scrutiny. To legally run a double-breasted operation, the two companies must remain separate and distinct. If the companies are not sufficiently separate and distinct from one another, the National Labor Relations Board (“NLRB”) or a court may find that the two companies are operating as a single entity or that the non-union company, or also known as the open shop, is merely an alter ego of the union company and, therefore, bound by the terms of the collective bargaining agreement. In order to determine whether the companies are sufficiently separate and distinct, the two entities must pass either the single employer test or the alter ego test depending on the nature of the double-breasted operation. Typically, the single employer test is used when the two entities run parallel operations, and the alter ego test is used when the open shop replaces the union company. Under the single employer test, the NLRB or courts will generally consider four factors: (1) the interrelation of operations; (2) common management; (3) common control of labor relations; and (4) common ownership. The alter ego test does not require a finding that the companies are a single bargaining unit, but analyzes to what extent the two entities have substantially identical management, business operation and purpose, business equipment, customers, and ownership. While common ownership is a factor considered under both the single employer and alter ego tests, common ownership alone is not dispositive of whether the companies are sufficiently separate and distinct. In other words, the NLRB and courts do not simply look for common ownership to determine whether the double-breasted operation is lawful. It is merely one of many factors to consider. Read the court decision
Read the full story...
Reprinted courtesy of Lauren E. Rankins, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)
Ms. Rankins may be contacted at lrankins@watttieder.com

New York Court Discusses Evidentiary Standards for Policy Rescission Based on Material Misrepresentation

August 10, 2020 — Robert S. Nobel - Traub Lieberman
On July 27, 2020, in the case of Mt. Hawley Ins. Co. v. AKI Renovations Group, Inc., (Sup. Ct. NY Co. 2020), Index No. 159421/2017 (unpublished), the trial court issued an Order granting summary judgment permitting rescission of a CGL policy based upon material misrepresentations in a policy application. The insured submitted an application in which it failed to disclose its demolition operations despite specific questions seeking this information. Mt. Hawley issued a primary and excess policy for the period of December 29, 2016 to December 29, 2017 (collectively, the policy). Subsequently, the insured sought coverage for a claim in which it was alleged that the insured was acting as a general contractor for demolition of a three-story building when the plaintiff was injured. The insurer advised the defendants that it was rescinding the policy ab initio, and also returned defendants’ premium in its entirety. The insurer asserted that it would not have issued the policy had defendants disclosed their demolition operations, then filed the coverage action seeking a judicial declaration ratifying its rescission of the policy. Read the court decision
Read the full story...
Reprinted courtesy of Robert S. Nobel, Traub Lieberman
Mr. Nobel may be contacted at rnobel@tlsslaw.com

Mitigate Construction Risk Through Use of Contingency

April 26, 2021 — Laurie A. Stanziale - Construction Executive
Mitigation of risk and costs in a construction project are always priorities for owners. In some contracts, in particular, Guaranteed Maximum Price contracts, some of those monetary risks are shifted to the contractor. Contingency is important because it allows for money to be in the budget for the unexpected and to keep the project moving, which benefits everyone. WHAT IS CONTINGENCY? Contingency is an amount of money built into the contractor’s price to complete the project to address unforeseen (although sometimes very common) costs that arise. This sum of money is generally referred to as the contractor’s contingency. The amount of the contingency is a balance struck between having money on hand to address the unexpected while also not unnecessarily tying up money that could otherwise be used for the project. Contingency is typically 5-10% of the hard costs. However, how the money is actually allocated during the project is not always well thought out, which can be the source of problems during the project. The contractor’s contingency is not to be confused with an owner’s contingency (or reserve) which is outside of the contractor’s budget and generally used for owner driven changes to the project, such as changes to scope, design and schedule. Reprinted courtesy of Laurie A. Stanziale, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
Read the full story...
Reprinted courtesy of

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES