CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Check The Boxes Regarding Contractual Conditions Precedent to Payment

August 21, 2023 — David Adelstein - Florida Construction Legal Updates
Remember this: complying with contractual conditions precedent to payment is important. There is a reason why construction contracts include contractual conditions precedent to payment. The contract does not include this language for sh*ts and giggles. This language is included to establish what is required of the payee before payment becomes due. There may be conditions precedent to the payment of progress payments. There may be conditions precedent to the payment of final payment. Payment is not due until the conditions precedent have been satisfied. Do yourself a favor and consider this language in the construction contract, particularly if a dispute arises. If the condition precedent has not or cannot be satisfied, game plan as to the factual reason. The best thing to do is be prepared – check the boxes regarding conditions precedent to ensure you have considered this contractual language. 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

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Be Careful When Requiring Fitness for Duty Examinations

October 21, 2015 — Craig Martin – Construction Contractor Advisor
Fitness for Duty examinations can be an important part of an employer’s hiring and retention protocol. The Nebraska Supreme Court recently clarified when an employer may require applicants and employees to undergo fitness for duty examinations. In Arens v. Nebco, Inc., the court ruled that an employer must have a legitimate, nondiscriminatory reason for its demand that a current employee submit to a fitness for duty examination. In this case, Lenard Arens suffered two significant injuries over the course of his 25 years of employment with Nebco. The second injury, a closed head injury, limited the type of work he could do and required written instructions due to short term memory loss. Arens was assigned to drive tractor-trailer trucks. Several years after returning to work, Arens had two minor accidents with his truck within a matter of days. Arens supervisor required him to undergo fitness for duty examination. Arens failed the fitness for duty examination and was terminated. Arens filed suit, claiming that Nebco discriminated against him by making him take a fitness for duty test. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

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California Supreme Court Confirms the Right to Repair Act as the Exclusive Remedy for Seeking Relief for Defects in New Residential Construction

February 22, 2018 — Brenda Radmacher – Construction Law Blog

The California Supreme Court recently issued its decision on a critical issue in the residential construction industry – the claims for construction defects that a California homeowner can bring against a builder or seller of new residential properties in California.

Holding

In McMillin Albany v. The Superior Court of Kern County, the Court held that California’s Right to Repair Act (California Civil Code, sections 895, et seq.) (the “Act”) is the exclusive remedy for homeowners claiming defective construction of new residences in California.

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Reprinted courtesy of Brenda Radmacher, Gordon & Rees
Ms. Radmacher may be contacted at bradmacher@grsm.com

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Retainage: What Contractors Need to Know and Helpful Strategies

June 04, 2024 — Gerard J. Onorata - ConsensusDocs
Introduction Most, if not all, construction contracts contain a provision for “retainage.” The origin and concept of retainage dates back to the railroad boom that embraced Great Britain in the 1840s. In its simplest terms, retainage is a mechanism by which an owner or general contractor withholds disbursement of funds from the payment of a requisition in order to secure future performance of a contract and/or to pay for repair of defectively performed work. Retainage typically ranges from five to ten percent, with the amount being reduced as the project progresses to substantial and final completion. One of the reasons for withholding retainage is to incentivize a contractor to complete its work in accordance with the contract terms and conditions. While this may be well-intentioned in concept, it all too often leads to abuse that impacts project cash flow and raises tension between the parties. This typically happens on projects that have delay issues, deficient drawings, and/or claims of defective work. When a project has “gone bad,” the withholding of retainage is one of the first things that an owner will latch onto in order to leverage its position against a contractor. In order for a contractor to put itself in the best position possible, the following negotiation techniques and protective measures should be kept in mind. Know Your Applicable Statute Every state except West Virginia has statutes in place that govern the payment of retainage on public projects. On federal projects, the amount of retainage withheld shall not exceed ten percent as set forth in the Federal Acquisition Regulations (“FAR”). The common thread running through these statutes is the payment of interest as a remedy when the retainage is not timely paid. Historically, most retainage statutes were applicable only to publicly funded projects. This has recently changed with a substantial number of state legislatures recognizing that the payment of retainage on private projects was a serious enough problem to warrant regulation. These include Alabama, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, and Vermont. New York’s retainage laws relating to private projects were enacted only this past November. Read the court decision
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Reprinted courtesy of Gerard J. Onorata, Peckar & Abramson
Mr. Onorata may be contacted at gonorata@pecklaw.com

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Pennsylvania: Searching Questions Ahead of Oral Argument in Domtar

October 08, 2014 — Robert Caplan – White and Williams LLP
If you have been following our coverage of Liberty Mutual Insurance Company v. Domtar Paper Co., you will recall that the Supreme Court of Pennsylvania decided on May 29, 2014 to hear the subrogated insurer’s appeal,1 despite the Superior Court’s holding against the subrogated insurer—based primarily on its own defective case law2 —and its denial of reargument, presumably due to the insurer’s briefing follies.3 The parties in Domtar, as well as numerous amici curiae (friends of the court),4 have submitted their respective briefs over the last few months, and the Supreme Court has scheduled oral argument to take place on October 8, 2014 in Pittsburgh, Pa. The Court has framed the issue as: “Does Section 319 of the Pennsylvania Workers’ Compensation Act, 77 P.S. § 671, allow the employer/insurer to step into the shoes of the insured employee to subrogate against the tortfeasor?”5 There are three possible outcomes in Domtar. The first (and easiest) possible outcome for the Supreme Court would be to punt to the Pennsylvania General Assembly for a decision on the issue. Workers’ compensation legislation, perhaps more than any other type of legislation, “creates a highly structured balancing of competing interests.”6 It is basic civics that the legislature has a “superior ability to examine social policy issues and determine legal standards so as to balance competing concerns.”7 Read the court decision
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Reprinted courtesy of Robert Caplan, White and Williams LLP
Mr. Caplan may be contacted at caplanr@whiteandwilliams.com

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Wildfire Threats Make Utilities Uninsurable in US West

August 12, 2024 — Mark Chediak - Bloomberg
Trinity Public Utilities District’s power lines snake through the lower reaches of the Cascade Range, a rugged, remote and densely forested terrain in Northern California that has some of the highest wildfire risk in the country. But for several years, the company has been without insurance to protect it from such a threat. Trinity’s equipment was blamed for causing a 2017 wildfire that destroyed 72 homes and three years later its insurer, a California public agency called the Special District Risk Management Authority, told the utility that it would no longer cover it for fires started by its electrical lines. Trinity could find no other takers. The utility’s exposure comes as wildfires are already flaring up across the US West in what could be a dangerous and prolonged fire season. “If a fire were to start now that involved one of our power lines, it would likely bankrupt the utility,” said Paul Hauser, general manager of the local government-owned utility that serves about 13,000 rural customers in Trinity County, 200 miles (322 kilometers) north of Sacramento. That’s because without insurance, a lawsuit could put the utility on the hook to pay for damages to private homes and businesses, which could easily top the utility’s annual revenue of about $16 million. Read the court decision
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Reprinted courtesy of Mark Chediak, Bloomberg

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Construction Resumes after Defects

June 28, 2013 — CDJ STAFF
When inspectors found defective bolts in the construction of the Media Arts Center at L. A. Mission College, the contractor walked off the job. The project had been underway for about eighteen months. After problems were found with welds and bolts, the contractor informed the school that it could not complete the job. The California Division of the State Architect then required inspection of every weld and joint, leading to a dispute as to who was going to pay for it. At this point, only the first story has been inspected. Although the other two stories must be inspected, the new contractor is about to begin work on the building. James O’Reilly, the executive director for facilities, planning and development, said that “the main focus is on fixing the defective issues and getting construction completed so we can serve the Mission campus.” Still at question is how much SMC Construction received before they walked off the job. Read the court decision
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Reprinted courtesy of

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One Stat About Bathrooms Explains Why You Can’t Find a House

June 10, 2015 — Patrick Clark – Bloomberg
Thirty-six percent. That’s the share of homes built in the U.S. last year that had three or more bathrooms, up from 26 percent in 2005, according to the U.S. Census Bureau. If you’re on the market for your first home, that statistic can help explain why you’re having a hard time finding something you can afford. In the years since the recession, builders have devoted their energy to “move-up” homes, which is what the industry calls houses that are too expensive for most first-time buyers. The result is clear from the bureau’s report on the characteristics of new housing, released on Monday: New homes have more bedrooms, bathrooms, and parking spaces. If you prefer a more conventional measure, the median square footage for new homes has increased 10 percent in the past decade. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg

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