CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Not Remotely Law as Usual: Don’t Settle for Delays – Settle at Remote Mediation

May 25, 2020 — Victor J. Zarrilli, Robert G. Devine & Michael W. Horner - White and Williams LLP
The emergence and rapid spread of COVID-19 has created extraordinary circumstances that have significantly impacted how we go about living, working and interacting with one another. The practice of law is no exception. While most cases have been postponed and some extended indefinitely, the issues and disputes that first triggered the litigation remain. In fact, the burdens created by social distancing and other responses to the COVID-19 outbreak have served to only increase these disputes and create an urgent need in some for quick resolution. In our previous article, we summarized some of the best practices that should be applied when taking and defending depositions in a remote, virtual setting. That technology can also offer the same benefits for alternative dispute resolutions. If planned properly, the use of technology allows remote mediations to be conducted as seamlessly as in-person mediations and, in some circumstances, affords additional benefits that can achieve the best possible resolution for all sides. This article summarizes the opportunities technology has created by which parties can attempt to resolve their disputes through alternative dispute resolution methods, even in a time of social distancing. Reprinted courtesy of White and Williams LLP attorneys Victor J. Zarrilli, Robert G. Devine and Michael W. Horner Mr. Zarrilli may be contacted at zarrilliv@whiteandwilliams.com Mr. Devine may be contacted at deviner@whiteandwilliams.com Mr. Horner may be contacted at hornerm@whiteandwilliams.com Read the court decision
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Be Careful with Good Faith Payments

February 24, 2020 — Christopher G. Hill - Construction Law Musings
Sometimes doing the expedient thing and what looks good at the time can come back to bite you. Just ask 3M Company. In Faneuil, Inc. v. 3M Co., the Virginia Supreme Court considered a customer services subcontract between Faneuil and 3M relating to a toll collection contract 3M entered into with ERC. The subcontract had a “pay if paid” clause in it requiring payment to 3M from ERC before ERC was required to pay Faneuil, a written change order provision and a base monthly payment to Faneuil for the services that could be reduced in the event of less than expected toll collections. Further, the subcontract stated that if either party settled 3rd party claims, that settlement would not bind the other party to the subcontract absent consent or Court order. Faneuil was then alleged to have been required to provide “Special Services” relating to manual identification of license plates and other information necessary for toll billing due to 3M’s alleged failure to provide adequate imaging services. Faneuil requested (without written change order) and 3M promised to pay extra for these services. When 3M was slow to pay for the special services, Faneuil did what you would expect and threatened to stop providing them. Instead of contesting the right to the work, 3m made sporadic “good faith” payments to induce continued Special Services from Faneuil. Eventually 3M’s issues caused ERC to stop payments and thus 3M stopped paying Faneuil. 3M then settled the payment claims with ERC and still failed to pay Faneuil. Read the court decision
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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Insurer Must Defend Claims of Alleged Willful Coal Removal

June 21, 2017 — Tred R. Eyerly - Insurance Law Hawaii
The court found that the insured was entitled to a defense against claims for its alleged willful removal of coal from third parties' land. Liberty Mut. Fire Ins. Co. v. Bizzack Constr, 2017 U.S. Dist. LEXIS 70285 (W.D. Va. April 27, 2017). The Virginia Department of Transportation (VDOT) contracted with Bizzack to perform work in widening U.S. Route 460. VDOT notified coal owners that it had been "necessary to remove certain coal" from their land during the construction of Route 460. Some of the coal owners sued Bizzack, seeking compensation for lost coal. They alleged Bizzack had illegally removed and sold their coal, and "damaged the remaining coal in place on the property." Bizzack sought coverage from Liberty Mutual. Liberty Mutual filed suit seeking a declaration that it had no duty to defend or indemnify Bizzack. Cross-motions for summary judgment were filed. Liberty Mutual argued: (1) there was no "occurrence"; (2) exclusion j (5) applied; and (3) the "expected or intended injury" exclusion applied. 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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Contractor Not Liable for Flooding House

October 02, 2013 — CDJ STAFF
Knife River Corp was hired by the town of Post Falls, Idaho to do road and sewer construction work. In the process, they interrupted a 6-inch water supply line, sending the water into a wastewater line. From there, the water flooded a home in Post Fall. The city paid more than $7,800 in damages. Post Falls sued Knife River’s insurer for coverage. The city has lost its lawsuit and is responsible for $18,500 in attorneys’ fees. Despite all this, the city administrator says that the city still has a good working relationship with Knife River. Read the court decision
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Privette: The “Affirmative Contribution” Exception, How Far Does It Go?

August 10, 2020 — Courtney Arbucci, Peter A. Dubrawski & Austin F. Smith - Haight Brown & Bonesteel
In Horne v. Ahern Rentals, Inc. (No. B299605, filed 6/10/2020 ord. publ. 6/10/2020), Plaintiffs filed a wrongful death action against Defendant Ahern Rentals, Inc. (“Ahern”) arising out of the fatal incident involving Ruben Dickerson (“decedent”), while employed by independent contractor 24-Hour Tire Service, Inc. Decedent was ultimately crushed on Ahern Rentals, Inc.’s property when a forklift that was improperly placed on uneven ground collapsed as decedent laid under the raised forklift as he performed tire maintenance. Plaintiffs’ suit would normally be barred by the Privette line of decisions which arise out of the foundational principle that an independent contractor’s hirer presumptively delegates to the contractor its tort law duty to provide a safe workplace for the contractor’s employees. (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).) The Privette rule is subject to a number of exceptions including the “peculiar risk” exception, the “nondelegable duty” exception and the “affirmative contribution” exception. (See Privette, supra.) Here, Plaintiffs’ claimed that their suit against Ahern arose out of the “affirmative contribution” exception to Privette as defined by Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker). Hooker allows suits otherwise barred by Privette to go forward if the hirer of the independent contractor “exercised control over safety conditions at the worksite in a way that affirmatively contributed to the employee’s injuries.” Reprinted courtesy of Haight Brown & Bonesteel attorneys Courtney Arbucci, Peter A. Dubrawski and Austin F. Smith Ms. Arbucci may be contacted at carbucci@hbblaw.com Mr. Dubrawski may be contacted at pdubrawski@hbblaw.com Mr. Smith may be contacted at asmith@hbblaw.com Read the court decision
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Congratulations 2022 DE, MA, NJ, NY and PA Super Lawyers and Rising Stars

August 03, 2022 — White and Williams LLP

Twelve White and Williams lawyers have been named by Super Lawyers as a Delaware, Massachusetts, New Jersey, New York or Pennsylvania "Super Lawyer" while eleven received "Rising Star" designations. Lawyers are selected through a process that takes into consideration peer recognition and professional achievement. The lawyers named to this year’s list represent a multitude of practices throughout the firm.

Super Lawyers 2022

Attorney	Practice Area
John Balaguer	PI Defense: Med Mal
David Chaffin	Business Litigation
Eric Hermanson	Insurance Coverage
Michael Kassak	General Litigation
Bridget La Rosa	Estate Planning and Probate
Randy Maniloff	Insurance Coverage
David Marion	Business Litigation
Wesley Payne	Insurance Coverage
Patricia Santelle	Insurance Coverage
Jay Shapiro	Criminal Defense: White Collar
Heidi Sorvino	Bankruptcy: Business
Andrew Susko	Civil Litigation: Defense

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Reprinted courtesy of White and Williams LLP

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Drones Used Despite Uncertain Legal Consequences

March 12, 2015 — Beverley BevenFlorez-CDJ STAFF
Francis Manchisi of Wilson Elser discussed how several industries—including construction—are using unmanned aircraft systems or unmanned aerial vehicles, commonly referred to as drones, and are either exploiting legal loopholes or ignoring laws altogether. The Federal Aviation Administration (FAA) has recently released a Notice of Proposed Rulemaking, which is now in a 60-day “notice and comment” period that is open to the public. Once that period ends, the FAA will consider the comments before putting the rules into law. According to Manchisi, the proposed rules include:

• Unmanned aircraft must weigh less than 55 lbs. (25 kg).
• Unmanned aircraft must remain within visual line of sight (VLOS) of the operator or visual observer.
• Maximum altitude is 500 feet above ground level.
• Preflight inspection by the operator is required.
• Operators are required to obtain an unmanned aircraft operator certificate with a sUAS rating from the FAA.

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Cherokee Nation Wins Summary Judgment in COVID-19 Business Interruption Claim

February 01, 2021 — Sergio F. Oehninger, Geoffrey B. Fehling & Matt Revis - Hunton Insurance Recovery Blog
In a resounding victory for policyholders, an Oklahoma state court granted partial summary judgment for the Cherokee Nation in its COVID-19 business interruption claim. The Cherokee Nation is seeking coverage for losses caused by the pandemic—specifically, the inability to use numerous tribal businesses and services for their intended purpose. Based on the “all risks” nature of the policy and the fortuitous nature of its loss, the Cherokee Nation sought a partial summary judgment ruling that the policies afford business interruption coverage for COVID-19-related losses. The policy provided coverage for “all risk of direct physical loss or damage,” which the Cherokee Nation contended was triggered when the property was “rendered unusable for its intended purpose.” In support of this view, and consistent with established insurance policy interpretation principles, such as providing meaning to every term and reading the policy as a whole, the Cherokee Nation argued that a distinction must exist between “physical loss” and “physical damage.” This distinction demands an interpretation supporting the “intended purpose” reading of the policy language. Thus, the physical presence of COVID-19 depriving the Cherokee Nation of the use of covered property for its intended purpose triggered a covered loss. Reprinted courtesy of Sergio F. Oehninger, Hunton Andrews Kurth, Geoffrey B. Fehling, Hunton Andrews Kurth and Matt Revis, Hunton Andrews Kurth Mr. Oehninger may be contacted at soehninger@HuntonAK.com Mr. Fehling may be contacted at gfehling@HuntonAK.com Read the court decision
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