CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

BWB&O’s Los Angeles Partner Eileen Gaisford and Associate Kelsey Kohnen Win a Motion for Terminating Sanctions!

April 25, 2023 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Congratulations to Bremer Whyte Brown & O’Meara, LLP Partner Eileen Gaisford and Associate Kelsey Kohnen for successfully arguing and winning a Motion for Terminating Sanctions for BWB&O’s client, a hotel in Los Angeles County. The court granted BWB&O’s Motion for Terminating Sanctions and Plaintiff’s Complaint was dismissed with prejudice. Plaintiff filed a complaint alleging she sustained multiple injuries after a slip and fall in a hotel. Plaintiff’s complaint alleged that BWB&O’s client was negligent, careless, and reckless in the ownership, care, control, and maintenance of the premises. BWB&O aggressively defended its client and filed several motions, arguing Plaintiff’s conduct abused the discovery process. The Court sided with BWB&O and granted its Motion for Terminating Sanctions, and the lawsuit was dismissed with prejudice. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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When it Comes to Trials, it’s Like a Box of Chocolates. Sometimes You Get the Icky Cream Filled One

October 14, 2019 — Garret Murai - California Construction Law Blog
According to the California Judicial Council you have about a one in three chance your case will go to trial. In 2018, of the 210,028 unlimited civil cases that were filed (i.e., cases with an amount at issue of more than $25,000) only 33 percent made it all the way to trial. The odds are even less if you’re involved in a limited civil case (i.e., cases with an amount at issue of less than $25,000) where only 15 percent make it all the way to trial. The reason: Lawyers are expensive. The other reason: Trials are risky. As well prepared as your counsel may be for trial, when it comes to trials, like boxes of chocolates, “Ya never know what you’re gonna get.” And sometimes you really, really don’t know what you’re going to get. I had a client involved in a trial once. The defendant’s representative at trial was a well-to-do young man and heir to a hotel fortune. He was young, athletic and had a confident, carefree way about himself that reminded me of “Dickie” Greenleaf from the Talented Mr. Ripley. And I wasn’t the only one who noticed. Read the court decision
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Reprinted courtesy of Garret Murai, Wendel, Rosen, Black & Dean LLP
Mr. Murai may be contacted at gmurai@wendel.com

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Conversations with My Younger Self: 5 Things I Wish I Knew Then

July 24, 2023 — Steve Swart - The Dispute Resolver
I remember the morning I became a construction law attorney. It was on my birthday several years ago when a partner called me into his office and asked me to review the A107 contract form for a large firm client. The assignment gave me a new language to speak and contract provisions that I came slowly to understand. I quickly moved into construction litigation and would soon learn that a "fragnet" was not the newest social media app but an important part of a delay claim. I read Spearin's biography and learned how to assess recoverable damages for different claims—costs to repair, replacement and betterment, increased financing/carrying costs, and the like. It took a lot of blood, sweat, and tears to get to where I am now. Echoing Rod Stewart’s sentiment—“I wish that I knew then, what I do now, when I was younger”—here are five tips I’d pass along to the younger me or anyone who is beginning their career as a construction lawyer: Read the court decision
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Reprinted courtesy of Steve Swart, Williams Mullen
Mr. Swart may be contacted at sswart@williamsmullen.com

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Specification Challenge; Excusable Delay; Type I Differing Site Condition; Superior Knowledge

January 02, 2024 — David Adelstein - Florida Construction Legal Updates
An Armed Services Board of Contract Appeals dispute, Appeal of L.S. Black-Loeffel Civil Constructors JV, ASBCA No. 62402, 2023 WL 5827241 (ASBCA 2023), involved which party bore liability for delay—the federal government or the prime contractor–based on various legal theories. Without detailing the factual details, a number of interesting legal issues were raised in this dispute including (1) a defective specification challenge, (2) excusable delay, (3) Type I differing site condition, and (4) superior knowledge. These legal issues are discussed below. 1. Specification Challenge (Defective Specifications) The contractor claimed that the government’s specifications were defective in regard to a thermal control plan. The government countered that the specifications were not design specifications but performance specifications. The specifications were performance based because they did not tell the contractor how to achieve the performance-based criteria. 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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Demonstrating A Fraudulent Inducement Claim Or Defense

May 18, 2020 — David Adelstein - Florida Construction Legal Updates
In a recent case, Florida’s Fourth District Court of Appeal reversed a trial court’s denial of a motion for a temporary injunction sought by an employer due to an independent contractor’s violation of a non-compete and non-solicitation provision in an employment / independent contractor agreement (“employment agreement”). You can find more on this case and the enforcement of the non-compete and non-solicitation clause here. A worthy discussion in this case centers on the independent contractor’s fraudulent inducement defense. Specifically, the independent contractor, as a defense to the injunction, claimed that he was fraudulently induced into entering into the employment agreement because the employer promised he would make a certain amount of money and he would work predominantly in one geographic location. The employment agreement contained NO such representations. Instead, the employment agreement contained a fee and services schedule and the independent contractor would be compensated based on that schedule. It stated nothing as to the independent contractor only having to work, or predominantly working, in one geographic location, or that the independent contractor would be guaranteed “X” amount of money working in that location. Why is this important? 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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Construction Defect Lawsuit Came too Late in Minnesota

June 28, 2013 — CDJ STAFF
The Minnesota Court of Appeals has upheld a summary judgment in a construction defect case, Lee v. Gorham. Minnesota law requires that contractors warranty that the home will be free of major construction defects during the first ten years, but claims must “be brought within two years of the discovery of the breach.” The Lees received a home inspection report in 2009 that identified a variety of defects, including “several possible structural defects.” The court noted that the report stated, “Contact your builder in writing of the findings, and discuss your options with an attorney.” The Lees contacted the contractor, Gorham Builders. After initial silence, Gorham told the Lees that problems would “have to be ‘turned over to [the] insurance company.’” Rodney noted in his testimony that he had two choices, to either sue Gorham or hire an outside contractor. Mr. Lee had concluded that the legal costs were likely to be equal to the cost of the contractor. In June, 2011, the Lees changed their mind about bringing a suit. Gorham sought and received a summary judgment dismissing the case on the grounds that too much time had passed since the Lees learned of the construction defect. The Lees appealed. The appeals court upheld the summary judgment. The Lees claimed that the 2009 home inspection did not alert them of a “major construction defect,” but the court concluded that the language of the report fit within the Minnesota statutory definition of a “major construction defect.” Nor was the appeals court convinced that at any time did Gorham provide “assurances that it would cure the defects to the home.” Within the same month as the May 2009 inspection, Gorham had made it clear that any problems were an issue for the insurance company. Thus, the appeals court concluded that the Lee’s equitable-estoppel argument was without merit. The Lees also brought to appeal the new argument that they did not realize they were dealing with “major construction defects” until they received a subsequent home inspection in 2011. The court noted that the second report does not detail “new defects or structural issues not identified in the 2009 inspection report.” In addition to being “without merit,” the court noted that this claim was not made in the district court and so the appeals court “need not consider this issue on appeal.” Read the court decision
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Reprinted courtesy of

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Bremer Whyte Brown & O’Meara, LLP is Proud to Announce Jeannette Garcia Has Been Elected as Secretary of the Hispanic Bar Association of Orange County!

February 03, 2020 — Bremer Whyte Brown & O'Meara LLP
The Hispanic Bar Association of Orange County is an affiliate bar of the OCBA. The OC HBA promotes education, unity, and excellence in the Hispanic legal community by expanding the business and professional opportunities available to its members, enhancing the members’ business and professional stature in the Hispanic community, increasing the participation of Hispanic leaders in civic affairs and enhancing the quality of life for the members and the community. Associate Jeannette Garcia has been a member of the OC HBA since 2012, a board member since 2017 and an executive board member since 2018. Jeannette will now serve as Secretary of the OC HBA for the 2020 term. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Insurer Unable to Declare its Coverage Excess In Construction Defect Case

January 06, 2012 — CDJ STAFF

The Ninth Circuit Court of Appeals has upheld a summary judgment in the case of American Family Mutual Insurance Co. v. National Fire & Marine Insurance Co. Several other insurance companies were party to this case. In the earlier case, the US District Court of Appeals for Arizona had granted a summary judgment to Ohio Casualty Group and National Fire & Marine Insurance Company. At the heart of it, is a dispute over construction defect coverage.

The general contractor for Astragal Luxury Villas, GFTDC, contracted with American Family to provide it with a commercial liability policy. Coverage was issued to various subcontractors by Ohio Casualty and National Fire. These policies included blanket additional insured endorsements that provided coverage to GFTDC. The subcontractor policies had provisions making their coverage excess over other policies available to GFTDC.

The need for insurance was triggered when the Astragal Condominium Unit Owners Association filed a construction defect claim in the Arizona Superior Court. CFTDC filed a third-party claim against several subcontractors. The case was settled with American Family paying the settlement, after which it filed seeking reimbursement from the subcontractor’s insurers. The court instead granted summary judgment in favor of Ohio Casualty and National Fire.

American Family appealed to the Ninth Circuit for a review of the summary judgment, arguing that the “other insurance” clauses were “mutually repugnant and unenforceable.” The Ninth Circuit cited a case from the Arizona Court of Appeals that held that “where two policies cover the same occurrence and both contain ‘other insurance’ clauses, the excess insurance provisions are mutually repugnant and must be disregarded. Each insurer is then liable for a pro rate share of the settlement or judgment.”

The court noted that unlike other “other insurance” cases, the American Family policy “states that it provides primary CGL coverage for CFTDC and is rendered excess only if there is ‘any other primary insurance’ available to GFTDC as an additional insured.” They note that “the American Family policy purports to convert from primary to excess coverage only if CFTDC has access to other primary insurance as an additional insured.”

In comparison, the court noted that “the ‘other insurance’ language in Ohio Casualty’s additional insured endorsement cannot reasonably be read to contradict, or otherwise be inconsistent with, the ‘other primary insurance’ provision in the American Family policy.” They find other reasons why National Fire’s coverage did not supersede American Family’s. In this case, the policy is “written explicitly to apply in excess.”

Finally, the Astragal settlement did not exhaust American Family’s coverage, so they were obligated to pay out the full amount. The court upheld the summary dismissal of American Family’s claims.

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