CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Court Holds That Self-Insured Retentions Exhaust Vertically And Awards Insured Mandatory Prejudgment Interest in Stringfellow Site Coverage Dispute

October 19, 2017 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In State of California v. Continental Ins. Co. (No. E064518; filed 9/29/17), a California appeals court ruled that after Continental was ultimately held to pay its policy limits for remediation of the Stringfellow hazardous waste site, the insured State of California was entitled to mandatory prejudgment interest on the full amount dating back to 1998, when a federal district court had issued a judgment under F.R.C.P. 54 declaring the State liable under both the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and state law. To get there, the state appeals court held that vertical exhaustion applied to the attachment of Continental’s excess policies. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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No Coverage for Property Damage That is Limited to Work Completed by Subcontractor

April 25, 2012 — Tred R. Eyerly - Insurance Law Hawaii

The issue before the 11th Circuit was whether, under Florida law, a general contractor had coverage for a property damage claim limited to the defective work performed by a subcontractor, and not affecting any other portion of the project. The court found no coverage in Amerisure Mut. Ins. Co. v. Auchter Co., 2012 U.S. App. LEXIS 5412 (11th Cir. March 15, 2012).



Amelia Island Company contracted with Auchter Company, a general contractor, for construction of an inn and conference room. Auchter subcontracted with Register Contracting Company to install the Inn’s roof. Pursuant to the Florida Building Code, installation of the roof required that it be able to withstand 110 m.p.h. winds.



Register completed installing the roof tiles in January 1998. Beginning in 2002, the tiles began dislodging from the roof. During the 2004 hurricane season, three hurricanes caused more tiles to come off the roof. Some of these tiles hit other tiles, cracking them.



In 2006, the parties went to arbitration over the costs of repairs for the roof.



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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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Catching Killer Clauses in Contract Negotiations

January 29, 2024 — James T. Dixon - Construction Executive
Risk-management personnel who are in the business of reviewing and negotiating construction contracts have some simple tools at their disposal to make sure their edits are addressing all of the killer risk-shifting clauses in those contracts. One of those is the index to that document. But not all authors of construction contract documents are kind enough to include an exhaustive index in their form agreements. One of the most popular sets of general conditions, the A201 General Conditions published by the American Institute of Architects, includes one that is fairly comprehensive. It identifies the six terms that include a reference to indemnification, for example. On the other end of the spectrum are the innumerable custom forms created by public and private project owners, and these rarely have an index. Even more powerful than an index is the search or find functions that are available in word processing applications and now in Adobe, the publisher of documents in portable document format, more commonly known as PDF. But with PDF documents, one must be careful to make sure the document under review is in fact searchable. Because every letter counts, it is important to have full confidence in the integrity of the search. Reprinted courtesy of James T. Dixon, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Trucks looking for Defects Create Social Media Frenzy

July 23, 2014 — Beverley BevenFlorez-CDJ STAFF
According to Willits News, slow-moving trucks with cameras attached rolled through Fort Briggs, attracting attention from homeowners in the community. People began mentioning the trucks on social media sites, with questions regarding what the cameras on the trucks were recording. Osmose Utilities General Manager, Jason Milligan, told Willits News that the trucks were “surveying overhead power poles and lines for PG&E.” "We're not looking for anything but what's overhead," Mulligan said, according to Willits News. "We find defects or issues with construction ... 20 or 30 feet off the ground, which are safety issues. We don't scan anything down towards people's homes." Read the court decision
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Michigan Court Waives Goodbye to Subrogation Claims, Except as to Gross Negligence

March 13, 2023 — Lian Skaf - The Subrogation Strategist
In Ace American Insurance Company, et. al. v. Toledo Engineering Co., Inc., et. al., No. 18-11503, 2023 U.S. Dist. LEXIS 15222 (Ace American), the United States District Court for the Eastern District of Michigan determined whether insurers could pursue their subrogation claims against the defendants despite a waiver of subrogation in each of the contracts the insured had with the respective defendants. Based on the language of the contracts and the circumstances leading up to the loss, the court held that the insurers could not pursue their subrogation claims – other than their claims for gross negligence – due to waivers of subrogation in the applicable contracts. In Ace American, the insured, Guardian Industries, LLC (Guardian), retained Toledo Engineer Co., Inc. (TECO) and Dreicor, Inc. (Dreicor) to renovate a glass furnace in the insured’s glass manufacturing plant. Guardian and TECO entered into a contract on December 6, 2016. Guardian and Dreicor entered into a contract on September 29, 2013, that the parties later updated on June 3, 2016. Both defendants began work on the project in the spring of 2017 and were finished with the portion of the work known as the “Cold Tank Repair” prior to the loss. On June 3, 2017, there was an explosion and fire at the plant that caused significant property damage. The plaintiff insurers (Plaintiffs) made payments in the amount of $80 million and became subrogated to its insured’s rights. Plaintiffs then initiated this action. Read the court decision
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Reprinted courtesy of Lian Skaf, White and Williams LLP
Mr. Skaf may be contacted at skafl@whiteandwilliams.com

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Appraisal Process Analyzed

August 19, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The California Court of Appeal offered a primer in the appraisal process in reversing the trial court's confirmation of the appraisal award. Lee v. California Capital Ins. Co., 2015 Cal. App. LEXIS 530 (Cal. Ct. App. June 18, 2015). A fire damaged an apartment building owned by the insured. The fire started in unit 3 on the ground floor. The insurer argued the fire did not extend beyond unit 3. The insured claimed that the fire damaged six of the 12 apartments with fire or smoke. The insured's public adjuster submitted a claim to the insurer that exceeded $800,000. The statement of loss included costs for cleaning, asbestos abatement, reconstruction of affected apartments, and loss of rent. The public adjuster said the loss consisted of burn damage to unit 3 and some damage to the "common" walls located between the apartments on the two floors above unit 3. All of the interior rooms of five apartments other than unit 3 would need to be completely dismantled and then replaced. 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

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Union Handbilling: When, Where, and Why it is Legal

November 06, 2018 — Wally Zimolong - Supplemental Conditions
A few days ago, IBEW Local 98 began began protesting a restaurant owned by professional football player Jahri Evans. The organizers are accusing Evans of violating local construction wage standards and are advertising their dispute with “handbills.” What are handbills? Walking down Fremont Street in Las Vegas is impossible without one or several characters putting a small business card with “questionable” adult entertainment advertisements in your hand. Some will slap papers to your chest, leaving you no choice but to grab the flyers. On a different level, this action occurs on a regular basis by union member. But instead of shady characters pushing questionable entertainment, it is union representatives pushing a dispute with a local employer over working conditions. However, in either case the practice is known as i as handbilling. Read the court decision
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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

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Bremer Whyte Brown & O’Meara LLP Attorneys to Speak at the 2016 National Construction Claims Conference

September 01, 2016 — Beverley BevenFlorez-CDJ STAFF
Bremer Whyte Brown & O’Meara, LLP (BWBO), announced that Keith G. Bremer, Founding Partner and John H. Toohey, Partner, will be speaking at the CLM National Construction Claims Conference being held September 28-30th this year. More than 500 professionals will gather at the conference location, the Manchester Grand Hyatt in San Diego, California. According to BWBO’s release, “the CLM will hold the most comprehensive construction claims conference ever. In addition to addressing construction defect claims, conference sessions will also address facets of construction-related claims including construction site accidents/injuries, coverage issues, subcontractor issues, and new technologies. Sessions will also address issues on the national, regional, and state levels.” Read the court decision
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