Cambridge Massachusetts Building Expert Directory

What If There Is a Design Error?

October 30, 2023 — Scott L. Baker - Los Angeles Litigation Blog
Many challenges can crop up when working on a construction project. Among these challenges, errors are the last thing that contractors or project owners want to face. Yet, they are not uncommon as you navigate the process. Design errors or mistakes are one such issue that can result in serious construction disputes and delays. It is important to determine who is liable when it comes to defects and design errors. So, who is responsible for design errors? Many might assume the architect – or the person who created the project design – is responsible for design errors. That is not necessarily true. Read the court decision
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Reprinted courtesy of Scott L. Baker, Baker & Associates
Mr. Baker may be contacted at slb@bakerslaw.com

Recent Changes in the Law Affecting Construction Defect Litigation

October 19, 2017 — David M. McLain - Colorado Construction Litigation
On May 23, 2017, Governor Hickenlooper signed HB17-1279 into law. The bill states that before an HOA’s executive board can institute a construction defect action, it must provide notice of the anticipated commencement of the action to each of the HOA’s unit owners, along with certain disclosures about the anticipated action. The bill also requires that the HOA executive committee convene a meeting of the unit owners to consider the action, and that the construction professionals against which the claim is being brought have the opportunity to address the members of the HOA. The bill also states that the HOA executive committee may only initiate a construction defect action if it is approved by “owners of units to which a majority of votes in the association are allocated.” Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Arizona – New Discovery Rules

May 16, 2018 — John Belanger - Bremer Whyte Brown & O'Meara LLP
Effective July 1, 2018 New Rules of Civil Procedure are taking effect in Arizona on July 1, 2018. The new Rules will change how discovery works in civil litigation in the state. Here is a sneak peek at the changes that will impact your file handling the most: Tiered Discovery

How much discovery is allowed in a case will now depend on the amount and type of relief sought
Cases will be assigned to one of three tiers
Parties can agree on a tier assignment, the court can assign a tier, or a tier can be assigned based on the amount of damages, or a combination of monetary and non-monetary damages

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Reprinted courtesy of John Belanger, Bremer Whyte Brown & O'Meara LLP
Mr. Belanger may be contacted at jbelanger@bremerwhyte.com

Unpredictable Opinion Regarding Construction Lien (Reinstatement??)

January 17, 2023 — David Adelstein - Florida Construction Legal Updates
Here comes the discussion of an appeal I was intimately involved in dealing with a construction lien. See Suntech Plumbing and Mechanical Corp. v. Bella Isla, LLC, 2022 WL 14672765 (Fla. 3d DCA 2022). Unfortunately, it was a losing result on my end but not a losing result to the issue at-hand. You should ask what in the world does this mean. I will tell you. Here is the fact pattern. A subcontractor files a construction lien foreclosure lawsuit against an owner for unpaid contract balance. In the same lawsuit, the subcontractor sues the general contractor for breach of contract and unjust enrichment associated with an approximate three-year delay on a construction project. The project was scheduled to be completed in 2019. It was not. The project was pushed into COVID and into 2022. (The subcontractor did not sue the general contractor for amounts subject to the lien foreclosure claim.) The general contractor, assuming the defense of the owner, moved to stay the lawsuit pending the outcome of arbitration based on an arbitration provision in the subcontract. The subcontractor did not dispute the arbitration provision, but argued that arbitration provision should not extend to the owner that was (a) not bound by the subcontract, (b) would not be a party to the arbitration, and (c) the amounts pled against the general contractor did not include the amounts subject of the lien foreclosure lawsuit. At a minimum, the lawsuit should be stayed, not dismissed. Nevertheless, the trial court dismissed the entire lawsuit in an order that states that it is a final order with language that the lien may be “reinstated” after the outcome of the arbitration (that the owner is not a party to). 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

Homebuilders Leading U.S. Consumer Stocks: EcoPulse

February 14, 2014 — Anna-Louise Jackson and Anthony Feld – Bloomberg
Shares of U.S. homebuilders are leading consumer discretionary stocks as the new home market is poised to rebound faster than other cyclical purchases this year. The Standard & Poor’s Supercomposite Homebuilding Index -- made up of Toll Brothers Inc. (TOL), NVR Inc. and nine others -- has risen 20 percent since Nov. 11. The S&P 500 GICS Consumer Discretionary Sector Index -- which includes Lennar Corp. (LEN), PulteGroup Inc. (PHM), D.R. Horton Inc. and 81 other companies such as Home Depot Inc. and Lowe’s Cos. -- is up 1.9 percent during the same period. This follows about 10 months when homebuilders lagged behind by 45 percentage points. Shares of companies that construct new residences are a source of relative strength in what’s proven to be a “more difficult market” this year, as the S&P 500 slid almost 6 percent in less than three weeks, said Michael Shaoul, chairman and chief executive officer of Marketfield Asset Management LLC in New York, which has more than $20 billion in assets. The recent rally in homebuilders suggests “a very important transition of leadership within the consumer discretionary sector” is underway, benefiting this segment of the broader cyclical group, he said. Ms. Jackson may be contacted at ajackson36@bloomberg.net; Mr. Feld may be contacted at afeld2@bloomberg.net Read the court decision
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Reprinted courtesy of Anna-Louise Jackson and Anthony Feld, Bloomberg

Revamp to Nationwide Permits Impacting Oil and Gas Pipeline, Utility and Telecom Line Work

March 29, 2021 — Alex P. Prochaska, Jones Walker LLP - ConsensusDocs
To avoid delay costs and penalties, contractors involved in pipeline and utilities construction maintenance, repair and removal need to understand how the 43 year old Nationwide Permit (NWP) regime has changed specific to the NWP 12 and what is now required for compliance. This change is important for contractors who construct, maintain, or repair pipelines that cross or impact waters of the United States, including wetlands. NWPs are a useful tool to streamline construction of a pipeline project, but it is important for contractors to know when certain terms and conditions still apply to the particular NWP and those that have been eliminated. On January 13, 2021, the United States Army Corps of Engineers (the Corps) published a final rule that reissued and modified twelve existing NWPs and issued four new NWPs that will take effect on March 15, 2021.1 The remaining 40 NWPs that were not reissued or modified under this rule will continue under the general conditions and definitions of the January 6, 2017 final rule. Read the court decision
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Reprinted courtesy of Alex P. Prochaska, Jones Walker LLP
Mr. Prochaska may be contacted at aprochaska@joneswalker.com

Louisiana Court Holds That Application of Pollution Exclusion Would Lead to Absurd Results

October 21, 2019 — Sergio F. Oehninger & Daniel Hentschel - Hunton Insurance Recovery Blog
A Louisiana court recently denied an excess insurer’s bid for summary judgment, finding that the insurer’s interpretation of a pollution exclusion would lead to “absurd results.” Central Crude, Inc., a crude oil transporter company, experienced an oil pipeline leak, allegedly causing damage to property belonging to Columbia Gas Transmission Company. Columbia Gas sued Central Crude seeking compensatory damages and injunctive relief to compel remediation of the site. Central Crude sought coverage under a CGL primary insurance policy issued by Liberty Mutual. The insurer initially agreed to cover Central Crude’s “reasonable and necessary costs” relating to the incident, but later refused to defend or indemnify Central Crude for any costs incurred from the incident. As a result, Central Crude brought suit against Liberty Mutual and its excess insurer, Great American, to enforce coverage. Great American moved for summary judgment arguing coverage was excluded by the excess policy’s pollution exclusion, which precludes coverage for injury “arising out of a discharge of pollutants.” Central Crude responded arguing that the exclusion’s applicability was invalidated or at least rendered ambiguous by the Following Form Endorsements, which reflect an intent to mirror the coverage afforded under the primary Liberty Mutual policy, and because coverage appears to be specifically authorized through the Premises Operations Liability Endorsement. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth and Daniel Hentschel, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Hentschel may be contacted at dhentschel@HuntonAK.com Read the court decision
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California’s Fifth Appellate District Declares the “Right to Repair Act” the Exclusive Remedy for Construction Defect Claims

September 03, 2015 — Stephen A. Sunseri – Gatzke Dillon & Balance LLP
August 26, 2015 - The Fifth Appellate District ruled SB800 (California's "Right to Repair Act" [the "Act"]) provides the sole remedy for homeowners in construction defect actions. The court found "no other cause of action is allowed to recover for repair of the defect itself or for repair of any damage caused by the defect." (McMillin Albany LLC v. Superior Court of California (Aug. 26, 2015, No. F069370) __ Cal.App.4th __ [2015 WL 5029324].) The court issued a blistering criticism of the Fourth Appellate District's prior opinion in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, which severely limited the reach of the Act to actions not involving property damage and allowing property damage claims to proceed freely under common law without any constraints posed by the Act. In McMillin, the court reviewed whether a homeowner was required to follow the Act's prelitigation procedures even after dismissing a cause of action arising under the Act. In deciding the issue, the court quoted directly from the first line of the Act (Civ. Code § 896) and found "[i]n any action seeking recovery of damages arising out of, or related to deficiencies in, the residential construction … , the claimant's claims or causes of action shall be limited to violation of" the standards set out in the Act. The court recognized the statutory exceptions to this rule, such as for claims arising under contract, or any action for fraud, personal injuries, or statutory violations. (Civ. Code., § 943.) However, this result directly conflicts with the Fourth Appellate District's decision in Liberty Mutual, which found homeowners can circumvent the entire Act by simply alleging property damage claims. McMillin rejects Liberty Mutual's "reasoning and outcome" as being inconsistent with the express language of the Act. McMillin found that Liberty Mutual failed to fully analyze the statutory language of the Act, which (on its face) limits any action for construction deficiencies to the requirements of the Act. McMillin concludes the Legislature intended that all construction defect actions (for new residences sold on or after January 1, 2003), are subject to the requirements of the Act, including the prelitigation procedures, regardless of whether a complaint expressly alleges a cause of action under the Act or not. McMillin is a great victory for homebuilders, but battle lines are now clearly drawn between the two appellate districts. McMillin directly conflicts with Liberty Mutual, and because of this conflict, the issue will need to be resolved by the California Supreme Court. Until such review is granted, the conflict will remain and trial courts will likely continue to conflate the issue. Read the court decision
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Reprinted courtesy of Stephen A. Sunseri, Gatzke Dillon & Balance LLP
Mr. Sunseri may be contacted at ssunseri@gdandb.com

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