Cambridge Massachusetts Building Expert Directory

Almost Nothing Is Impossible

October 30, 2018 — Brian N. Krulick - Smith Currie
In today’s ever-changing legal and political climate, contractors are being forced to deal with events and circumstances that seemed improbable just a short time ago. These changing circumstances have led some contractors to question whether they are required to continue performing in the face of uncertainty and, in many cases, potentially large losses. The doctrines of impossibility and impracticability, if proven, can serve as powerful defenses and excuse performance of a construction contract. However, contractors should exercise great caution before relying on these defenses as an excuse for nonperformance, as the consequences of stopping work without proper justification can be disastrous. Read the court decision
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Reprinted courtesy of Brian N. Krulick, Smith Currie
Mr. Krulick may be contacted at bnkrulick@smithcurrie.com

Nevada Lawmakers Had Private Meetings on Construction Defects

February 21, 2013 — CDJ STAFF
Both Democratic and Republican members of the Nevada legislature had closed door meetings with representatives of the construction industry. Democratic lawmakers also met with the other side of the discussion over construction defect laws, lobbyists representing trial lawyers. When asked by the Las Vegas Sun why this was done in private meetings instead of a public hearing, Speaker Marilyn Kirkpatrick didn’t have an answer, other than that “everyone in the building did it yesterday.” The meetings were described as briefings on general policy issues, offering legislators a chance to ask questions. The Sun notes that under Nevada’s open meeting law, government agencies would not be allowed to do this in a closed meeting, but that the legislature exempted itself from the law. Read the court decision
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Water Alone is Not Property Damage under a CGL policy in Connecticut

July 22, 2024 — Bill Wilson - Construction Law Zone
The Connecticut Appellate Court recently provided guidance on what does not constitute property damage under a typical contractor’s Commercial General Liability (CGL) insurance policy in Westchester Modular Homes of Fairfield County, Inc. v. Arbella Protection Ins. Co., 224 Conn App. 526 (2024). In this case, the contractor defended construction defect claims brought by an owner and then sued its insurer to recover $500,000 in defense costs for failing to provide a defense under the contractor’s policy. In Connecticut, an insurer is obligated to provide a defense based on what is alleged in a complaint and if it has actual knowledge of any facts establishing a reasonable possibility of coverage. The contractor provided extrinsic evidence for two defects claimed by the owner: (1) windows were installed improperly such that water was collecting and will continue to collect in the window soffit areas and eventually rot the wall, and (2) the vapor barrier was not installed in the second-floor ceiling which will result in water condensation and water damage to the roof structure if not remedied. The insurer relied on typical provisions included in most CGL policies. The insurer has no duty to defend the insured against any suit seeking damages for property damage to which the insurance does not apply. The term “property damage” is defined as “physical injury to tangible property, including all resulting loss of use of that property.” Under well-established Connecticut law, the phrase “physical injury” unambiguously connotes damage to tangible property, causing an alteration in appearance, shape, color, or some other material dimension. It is also well-established that claims for property damage caused by defective work are covered under a CGL policy but claims for repair of the defective work itself are not. The insurer denied any duty to defend because no coverage was triggered under the liability policy. Both parties moved for summary judgment. Read the court decision
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Reprinted courtesy of Bill Wilson, Robinson & Cole LLP
Mr. Wilson may be contacted at wwilson@rc.com

Construction Defect Leads to Death of Worker

January 28, 2013 — CDJ STAFF
The family of a Florida man has received $2.4 million in damages as a result of his death. Victor Lizarraga was killed when a steel column fell due to the anchor bolts being improperly secured. The general contractor on the project, R. L. Haines, told subcontractors that the epoxy had sufficient time to cure. An OSHA investigation determined that the epoxy was not used properly. Mr. Lizarraga worked for a subcontractor on the project. Mr. Lizarraga and his coworkers were hired to erect steel columns. The epoxy failed, sending a 1,750-pound column down onto Mr. Lizarraga. According to the lawsuit, "due to the sudden and unexpected nature of this incident Mr. Lizarraga had no ability, opportunity or time to get out of the way of the falling column." Other parties in the lawsuit settled with the family. R. L. Haines was the only defendant to go to a jury trial. Read the court decision
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Mitsubishi Estate to Rebuild Apartments After Defects Found

March 19, 2014 — Kathleen Chu and Takahiko Hyuga – Bloomberg
Mitsubishi Estate Co. (8802), Japan’s biggest developer by market value, will rebuild a Tokyo residential complex where it stopped selling apartments that went for as much as 350 million yen ($3.4 million) after finding defects. The reconstruction will take about three to four years to complete, and builder Kajima Corp. will be in charge of the project and cover the cost, said Masayuki Watanabe, a spokesman at Tokyo-based Mitsubishi Estate. The building was constructed by Kajima along with Kandenko (1942) Co., according to the developer. Mitsubishi Estate stopped selling apartments in the building in central Tokyo’s upscale Aoyama neighborhood after finding it needed repairs, including to some of the pipes, the developer said in an e-mail on Feb. 3. Eighty-three out of 86 units were under contract and were expected to be handed over to the owners on March 20, the company said last month. Ms. Chu may be contacted at kchu2@bloomberg.net; Mr. Hyuga may be contacted at thyuga@bloomberg.net Read the court decision
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Reprinted courtesy of Kathleen Chu and Takahiko Hyuga, Bloomberg

Angels Among Us

June 21, 2024 — Maggie Murphy - Construction Executive
In the early morning hours of March 26, 2024, an outbound cargo ship in the Port of Baltimore unexpectedly lost power as it churned toward the Francis Scott Key Bridge. Authorities had just minutes to stop vehicular traffic before the massive vessel—985 feet long and 157 feet wide, nearly as tall as the Eiffel Tower if stood on end—crashed headlong into one of the bridge’s support piers. Quick-acting dispatchers were able to stop the flow of traffic in time, but overnight work crews filling potholes on the bridge didn’t have enough warning. Six workers lost their lives when the bridge collapsed. On top of bringing immense grief, construction fatalities can be financially devastating to the surviving families. Enter Construction Angels, a nonprofit that provides financial assistance, grief counseling and scholarships to families of fallen construction workers. When founder Kristi Ronyak first heard news of the Key Bridge collapse, she immediately jumped into action. “We started getting calls just hours after the crash,” Ronyak says. “When I first heard the news, my heart sank, and I just started crying. Reprinted courtesy of Maggie Murphy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Allegations Confirm Duty to Defend Construction Defect Claims

June 11, 2014 — Tred R. Eyerly – Insurance Law Hawaii
Relying upon the same case cited by the Hawaii Supreme Court in its seminal decision on duty to defend, the federal district court determined the allegations sufficiently established a duty to defend construction defect claims. Voeller Constr. v. Southern-Owners Ins. Co., 2014 U.S. Dist. LEXIS 61862 (M. D. Fla. May 5, 2014). The Bay Harbor Clearwater Condominium Association, Inc. sued Voeller Construction for statutory breach of warranty and building code violations which allegedly caused damage to the condominium structure. The complaint alleged that the damage was unknown to the unit owners at the time they purchased their units. The project was completed in 2007. Expert reports attached to the complaint listed July 7, 2010, as the earliest date of discovery of the damage to the property. The CGL policies were effective from January 24, 2007 to May 9, 2009. Therefore, the insurer argued there was no coverage because the alleged "property damage" was discovered for more than one year after the policies expired. The court determined there was a duty to defend. Citing Trizec Props., Inc. v. Biltmore Constr. Co., 767 F.2d 810 (11th Cir. 1985), the court noted that if the complaint alleged facts which created potential coverage under the policy, the duty to defend was triggered. The Hawaii Supreme Court relied on Trizec and made the same ruling in Dairy Road Partners v. Island Ins Co., Ltd., 92 Haw. 398, 412, 992 P.2d 93, 107 (2000). Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Be a Good Neighbor: Protect Against Claims by an Adjacent Landowner During Construction

November 09, 2020 — Joshua Levy & Madeleine Bailey - Construction Executive
There’s nothing like working in an office while pilings are being pounded into the ground next door, leading to crashing sounds of pile driving and the attendant afternoon headaches. Fortunately, that’s often the extent of a neighboring project’s real inconvenience. In other cases, however, construction in close quarters can mark the beginning of costly and emotional disputes, which can escalate to costly legal battles during and after construction. NUISANCE AND STRUCTURAL DAMAGE CLAIMS Construction claims are often based on the concept of “nuisance,” or on structural damage to adjacent property. Nuisance claims are typically based on noise and dust from construction sites, while structural damage claims are based on direct physical damage caused by neighboring demolition, vibrations, excavation and dewatering. These types of claims can result in monetary damages for neighbor plaintiffs, loss of permits for contractors and reputational damage to the developer. In one recent case in New York City, the developer faces up to $10 million in damages in a lawsuit with a neighboring property owner. The developer was conducting excavation, dewatering and installation of steel sheet piles, which the plaintiff alleges caused its five-story building to settle and shift, rendering doors inoperable and causing extensive cracking and separation of floors and ceilings from walls and supports. The plaintiff filed its complaint on Jan. 24, 2019, and the lawsuit is ongoing, exemplifying that construction claims such as these can be time consuming and costly (Complaint, 642 East 14th St. v. 644 E. 14th Realty [N.Y. Sup. Ct. January 24, 2019]). Reprinted courtesy of Joshua Levy & Madeleine Bailey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Levy may be contacted at joshua.levy@huschblackwell.com

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