Cambridge Massachusetts Building Expert Directory

Indiana Court of Appeals Holds That Lease Terms Bar Landlord’s Carrier From Subrogating Against Commercial Tenant

April 03, 2019 — Gus Sara - The Subrogation Strategist
In Youell v. Cincinnati Ins. Co., 2018 Ind. App. LEXIS 497 (2018), the Court of Appeals of Indiana considered whether a landlord’s carrier could bring a subrogation claim against a commercial tenant for fire-related damages when the lease, which did not reference subrogation, explicitly required the landlord to maintain fire insurance coverage for the leased premises. The court held that subrogation was barred because the provision requiring the landlord to maintain fire insurance established an agreement to provide both parties with the benefits of insurance. The Youell case establishes that, in Indiana, if the lease explicitly states that the landlord will maintain fire casualty insurance for the building, the lease evidences an agreement by the parties to shift the risk of loss to the insurer. This agreement bars a landlord’s insurance carrier from subrogating against a commercial tenant in the event of a casualty. In 2013, the building owner, Greg Dotson, began leasing a commercial building to Robert Youell for his tire business, Best One Giant Tire, Inc. (collectively, Youell). The lease agreement required that the landlord maintain fire and extended coverage insurance on the building and the leased premises. The lease also required the tenant to purchase fire and extended coverage insurance for its personal property. The lease did not mention subrogation. Dotson obtained a property insurance policy through Cincinnati Insurance. Read the court decision
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Reprinted courtesy of Gus Sara, White and Williams LLP
Mr. Sara may be contacted at sarag@whiteandwilliams.com

Insurance Attorney Gary Barrera Joins Wendel Rosen’s Construction Practice Group

July 26, 2017 — Garret Murai - California Construction Law Blog
Wendel Rosen’s Construction Practice Group welcomes a new member to our band of merry men (and women), Gary Barrera. Gary, an insurance attorney, has extensive experience with construction defect, property damage, professional liability and environmental claims. He has represented real estate developers and contractors in all aspects of construction defect litigation and has resolved insurance coverage disputes arising out of construction claims on behalf of policyholders. Prior to attending law school, Gary worked as a claims representative and examiner for several insurance carriers and third-party administrators. 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

Contractor Changes Contract After Signed, Then Sues Older Woman for Breaking It

September 03, 2015 — Beverley BevenFlorez-CDJ STAFF
Channel 13 Who TV reported, in Winterset, Iowa, Mary Gregory allegedly signed an estimate for hail damage repair to her home, and was later told by the contractor that it was a contract. When a crew showed up to her home to perform the work, she turned them away. Then, Gregory received a letter from an attorney demanding eight thousand dollars for breach of contract. It turns out that the contractor altered the estimate Gregory signed and submitted it to the insurance company. According to Who TV, the altered estimate “contained work that Gregory says she didn’t authorize and a price tag of $32,134.” Jim Nelle, the contractor, admitted that he added to the contract after it was signed. He claims he was only trying to help her. Read the court decision
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David M. McLain to Speak at the CLM Claims College - School of Construction - Scholarships Available

July 28, 2016 — David M. McLain – Colorado Construction Litigation
I am happy to have been asked to serve as an instructor at this year's CLM Claims College – School of Construction, to be held at the Marriott Baltimore Waterfront in Baltimore, Maryland on Wednesday, September 7, 2016 through Saturday, September 10, 2016. Overview of the 2016 School of Construction Construction claims present myriad complexities in claim handling. Construction defect lawsuits are often multi-party cases with cross claims and third-party claims between and among the numerous defendants. Insurance coverage is intertwined and complex due to the interplay of primary, excess, wrap, and additional insurers for the numerous defendants. All this is further complicated by statutes and regulations, inconsistent case law and procedural peculiarities throughout the United States. The economic stakes are high as the damages claims can be in the multi-millions. 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

Appraisal Ordered After Carrier Finds Loss Even if Cause Disputed

April 04, 2022 — Tred R. Eyerly - Insurance Law Hawaii
The court ordered an appraisal when the parties differed on the amount of loss to the dwelling even when the carrier contended the dispute was over the cause of the loss. Khaleel v Amguard Ins. Co., No. 21 C 992, Memorandum Opinion and Order (N.D. Ill. Feb. 11, 2022). The order is here. Plaintiffs home was damaged by wind and hail. A claim was submitted to Amguard for damage to the roof. Amguard found there was hail damage to the soft metal vents on the roof and estimated repair costs to be $3,815.16. Amguard found no damage to the roof itself. Plaintiffs contended there was additional damage to the roof. Plaintiffs demanded an appraisal. Amguard rejected the appraisal demand, claiming that the damage to the roof was due to wear and tear, and therefore constituted an excluded cause under the Policy. Plaintiff filed suit. After Amguard answered, plaintiffs moved for judgment on the pleadings. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

When Are General Conditions and General Requirements Covered by Builder's Risk

December 18, 2022 — Michael V. Pepe & Grace V. Hebbel - Saxe Doernberger & Vita
General conditions and general requirements are terms of art in the construction industry that describe the indirect costs necessary to complete a construction project. After physical loss or damage to a project, the following question often arises: Are “general conditions” and “general requirements” covered under a builder’s risk policy? General Conditions vs. General Requirements General conditions are usually described as the cost of managing a construction project. Examples include salaries for personnel like project managers, supervisors, engineers, field office staff, as well as the cost of field trailers, office equipment and supplies, and anything necessary to support the staff. General requirements are the non-management indirect costs of executing the project, including items such as pre-development costs, permits, security, dumpsters, fences, temporary lighting, worker amenities, and clean-up costs. Reprinted courtesy of Michael V. Pepe, Saxe Doernberger & Vita and Grace V. Hebbel, Saxe Doernberger & Vita Mr. Pepe may be contacted at MPepe@sdvlaw.com Ms. Hebbel may be contacted at GHebbel@sdvlaw.com Read the court decision
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When Does a Contractor Legally Abandon a Construction Project?

January 24, 2018 — Rick Erickson - Real Estate Litigation Blog
Lately, we’ve been spending more time as litigators pursuing and defending claims of abandonment against contractors. It has become apparent that abandonment is often misinterpreted in its legal meaning and effect. Here are some thoughts on abandonment to consider. On its face, the concept of abandonment is simple enough. For any number of reasons, a contractor abandons a project when the contractor stops showing up. Abandonment is major concern for all players on the project because it causes critical path delays and significant costs to replace the contractor with another contractor, many times at a much higher cost than the original contractors’ bid. Read the court decision
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Reprinted courtesy of Rick Erickson - Snell & Wilmer
Mr. Erickson may be contacted at rerickson@swlaw.com

Teaching An Old Dog New Tricks: The Spearin Doctrine and Design-Build Projects

October 30, 2018 — John Castro - Gordon & Rees Construction Law Blog
The United States District Court for the Southern District of California has now held that the Spearin doctrine applies to design-build subcontractors where the subcontractor is expected to design a portion of their work. The case is United States for the use and benefit of Bonita Pipeline, Inc., et al. v. Balfour Beatty Construction, LLC, et al. (“Bonita Pipeline”) (Case No. 3:16-cv-00983-H-AGS). In Bonita Pipeline, a subcontractor sued the general contractor and its sureties alleging breach of contract, breach of implied warranty, declaratory relief, and recovery under the Miller Act. The subcontractor then filed a motion for partial summary judgment against the general contractor on its declaratory relief cause of action, seeking a finding that the general contractor could not shift legal responsibility for its defective plans and specifications to the subcontractor. Read the court decision
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Reprinted courtesy of John Castro, Gordon & Rees Scully Mansukhani
Mr. Castro may be contacted at jcastro@grsm.com

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