Cambridge Massachusetts Building Expert Directory

Mandatory Arbitration Isn’t All Bad, if. . .

August 13, 2019 — Christopher G. Hill - Construction Law Musings
In the past week or so mandatory arbitration has been all the rage. From those that argue that arbitration is becoming more burdensome than litigation, to my friend and fellow construction attorney Scott Wolfe who gives great advice on how to make arbitration worth it again. You can place me in the camp of those that think that mandatory arbitration clauses of the type typically found in contracts can add a layer of expense that can be unnecessary. However, if an arbitration clause is carefully drafted, and properly used, these clauses an be helpful in assuring that the streamlining effect for which arbitration was created actually occurs. Because the contract is king in Virginia, these provisions can essentially create the rule of civil procedure used to resolve any dispute relating to the project. Anything from the number and method of appointing the arbitrators, to the ability to use attorneys, to the time between notice and arbitration hearing and whether mediation is a requirement, to the documents and other pre-arbitration exchanges can and should be specifically outlined. The construction contract can also state who decides between court or arbitration. This can be one party or both. The possibilities are almost endless. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Beverly Hills Voters Reject Plan for Enclave's Tallest Building

November 10, 2016 — James Nash – Bloomberg
A costly battle over development in Beverly Hills, California, ended with voters rejecting a hotel owner’s proposal to combine two planned condominium towers into a single building that would have loomed over the wealthy Southern California enclave. With 44 percent in support and 56 percent against, Beverly Hills voters turned down plans by Beny Alagem, who owns the Beverly Hilton and is building an adjacent 170-room Waldorf Astoria, to develop a single 26-story tower next to the hotels, instead of eight- and 18-story buildings that were approved by the city council and a voter referendum in 2008. Alagem’s plan sets aside the remaining 1.7 acres (0.7 hectares) for a public park and gardens. Read the court decision
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Reprinted courtesy of James Nash, Bloomberg

Montrose Language Interpreted: How Many Policies Are Implicated By A Construction Defect That Later Causes a Flood?

March 17, 2011 — Shaun McParland Baldwin

The Court of Appeals of Indiana recently addressed the “Montrose” language added to the CGL ISO form in 2001 in the context of a construction defect claim where a fractured storm drain caused significant flooding a year after the drain was damaged. The insuring agreement requires that “bodily injury” or “property damage” be caused by an “occurrence” and that the “bodily injury” or “property damage” occur during the policy period. The Montrose language adds that the insurance applies only if, prior to the policy period, no insured knew that the “bodily injury” or “property damage” had occurred in whole or in part. Significantly, it also states that any “bodily injury“ or “property damage” which occurs during the policy period and was not, prior to the policy period known to have occurred, includes a continuation, change or resumption of that “bodily injury” or “property damage” after the end of the policy period.

In Grange Mutual Cas. Co. v. West Bend Mut. Ins. Co., No. 29D04-0706-PL-1112 (Ct. App. IN March 15, 2011), http://www.ai.org/judiciary/opinions/pdf/03151109ehf.pdf, Sullivan was the General Contractor for a school construction project. Its subcontractor, McCurdy, installed the storm drain pipes. One of the storm pipes was fractured in 2005 while McCurdy was doing its installation work. More than a year later, the school experienced significant water damage due to flooding. It was later discovered that the flooding was due to the fractured storm drain. Sullivan’s insurer paid $146,403 for the water damage. That insurer brought a subrogation claim against McCurdy and its two insurers: West Bend and Grange. West Bend had issued CGL coverage to McCurdy while the construction was ongoing , including the date in which the storm pipe was fractured. Grange issued CGL coverage to McCurdy at the time of the flooding. Those two carriers jointly settled the subrogation claim and then litigated which insurer actually owed coverage for the loss. Significantly, the loss that was paid included only damages from the flooding, not any damages for the cost of repairing the pipe.

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Reprinted courtesy of Shaun McParland Baldwin of Tressler LLP. Ms Baldwin can be contacted at sbaldwin@tresslerllp.com

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Condos Down in Denver Due to Construction Defect Litigation

November 06, 2013 — CDJ STAFF
A new report suggests that fears of construction defect litigation may be the cause of the slump in condo building in the Denver area. The Denver Business Journal reports that the Denver Regional Council of Governments commissioned the study by Economic & Planning Systems. The conclusion of the report was that the only type of condominium likely to be built is high-cost units with high profit margins. This is not good news for the DRCOG, which is seeking to create more affordable housing. The report found that builders assess the likeliness of being sued “is nearly 100 percent,” that costs of addressing construction defects are 12% higher than at apartment complexes, and that preparing for litigation adds about $15,000 to the cost of a condo unit. One possible remedy is to reform Colorado’s construction defect laws. Bob Muphy, the mayor of Lakewook and an advocate of construction defect litigation reform, said that he sees “this as a verification of what I’ve been talking about.” Read the court decision
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Reprinted courtesy of

Best U.S. Home Sales Since 2007 Show Momentum in Housing Market

August 26, 2015 — Sho Chandra – Bloomberg
America’s housing market has been heating up this summer. Purchases of previously owned homes unexpectedly rose in July for a third straight month to reach the highest level since February 2007, figures from the National Association of Realtors showed Thursday. The gain was driven by stronger sales of single-family houses even as the share of first-time buyers shrank. A limited number of available properties is keeping prices elevated, giving homeowners the financial flexibility to trade up as their housing equity improves. The data and a recent report showing the strongest rate of residential construction since 2007 are consistent with the Federal Reserve’s view that the industry is making progress. Read the court decision
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Reprinted courtesy of Sho Chandra, Bloomberg

Title II under ADA Applicable to Public Rights-of-Way, Parks and Other Recreation Areas

June 29, 2017 — Richard E. Morton - Haight Brown & Bonesteel LLP
Plaintiff Ivana Kirola, who suffers from cerebral palsy, sued the City and County of San Francisco, in a class action contending certain public areas, including rights-of-way, pools, parks and other recreation areas, did not meet the mandate of Title II of the American With Disabilities Act (Kirola v. City and County of San Francisco, 9th Circuit Court of Appeals, No. 14-17521, 2017 DJDAR 5982). Title II provides that no qualified individual with a disability “shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Title II’s implementing regulations mandate that each facility constructed after January 26, 1992 be “readily accessible to and usable by individuals with disabilities.” And, for each facility “altered after January 26, 1992,” the altered portion must, “to the maximum extent feasible,” be likewise accessible. The Federal Architectural and Transportation Barriers Compliance Board creates nonbinding Americans With Disabilities Act Accessibility Guidelines (ADAAG) to ensure compliance with Title II, and that the Department of Justice (DOJ) adopt its own binding regulations, consistent with the ADAAG standards. Here, the District Court interpreted ADAAG standards as not applying to public rights-of-way, parks, and playground facilities. The District Court concluded that none of Kirola’s experts were reliable in their interpretation of the standards and how the standards applied to the public rights-of-way, etc. Conversely, the District Court concluded that all of the city’s experts were reliable. It thus disregarded and discarded every ADAAG violation identified by Kirola’s experts, accepting only the small number of violations identified by the city’s experts. Read the court decision
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Reprinted courtesy of Richard E. Morton, Haight Brown & Bonesteel LLP
Mr. Morton may be contacted at rmorton@hbblaw.com

Product Liability Economic Loss Rule and “Other Property” Damage

November 28, 2022 — David Adelstein - Florida Construction Legal Updates
One of the best defenses a manufacturer has, particularly in non-personal injury cases, is the economic loss rule. Lo and behold, a recent opinion out of the Middle District of Florida, Dero Roofing, LLC v. Triton, Inc., 2022 WL 14636884 (M.D.Fla. 2022), touches on this very subject with cogent analysis regarding “other property” damage for purposes of the economic loss rule. In Dero Roofing, a roofing contractor repaired hurricane damage to roofs of condominium buildings. The roofing contractor became a certified applicator of the manufacturer Triton’s products. After the roofer applied certain products with a sprayer, the products “streaked down the roof tiles onto ‘the exterior and interior of the [Condos], including penetration of the residents’ screens, gutters, and other related areas.” Dero Roofing, supra, at *1. The roofing contractor obtained an assignment of the condominium’s claims and sued the manufacturer and distributor of the (Triton manufactured) products. The defendants moved to dismiss under the economic loss doctrine. The economic loss doctrine “prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any property other than itself.” Dero Roofing, supra, at *3 (quotation and citation omitted). Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

More Hensel Phelps Ripples in the Statute of Limitations Pond?

February 03, 2020 — Christopher G. Hill - Construction Law Musings
As is always the case when I attend the Virginia State Bar’s annual construction law seminar, I come away from it with a few posts on recent cases and their implications. The first of these is not a construction case, but has implications relating to the state project related statute of limitations and indemnification issues for construction contracts brought out in stark relief in the now infamous Hensel Phelps case. In Radiance Capital Receivables Fourteen, LLC v. Foster the Court considered a waiver of the statute of limitations found in a loan contract. The operative facts are that the waiver was found in a Continuing Guaranty contract and that the default happened more than 5 years prior to the date that Radiance filed suit to enforce its rights. When the defendants filed a plea in bar stating that the statute of limitations had run and therefore the claim was barred, Radiance of course argued that the defendants had waived their right to bring such a defense. The defendants responded that the waiver was invalid in that it violated the terms of Va. Code 8.01-232 that states among other things:

an unwritten promise not to plead the statute shall be void, and a written promise not to plead such statute shall be valid when (i) it is made to avoid or defer litigation pending settlement of any case, (ii) it is not made contemporaneously with any other contract, and (iii) it is made for an additional term not longer than the applicable limitations period.

The Circuit Court and ultimately the Supreme Court agreed with the defendants. In doing so, the Virginia Supreme Court rejected arguments of estoppel and an argument that a “waiver” is not a “promise not to plead.” Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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