CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Federal Court Holds That Other Insurance Analysis Is Unnecessary If Policies Cover Different Risks

September 28, 2020 — Craig Rokuson - Traub Lieberman Insurance Law Blog
In Greater Mutual Insurance Company v. Continental Casualty Company, 2020 WL 5370419 (S.D.N.Y. September 8, 2020), the United States District Court for the Southern District of New York had occasion to consider the “other insurance” provisions of a commercial general liability policy, issued by Greater Mutual Insurance Company (“GNY”), and a directors and officers (“D&O”) policy, issued by Continental, to the same insured. The GNY policy covered, inter alia, property damage caused by an occurrence, as well as “personal advertising injury,” defined to include “[t]he wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” The Continental D&O policy covered claims for wrongful acts, including “wrongful entry or eviction, or other invasion of the right to private occupancy. . . .” Unlike the GNY policy, however, the Continental policy expressly excluded coverage for damage to tangible property. In the underlying action, the plaintiffs alleged that the insured engaged in construction work to fix a leak from a terrace on the seventeenth floor. In doing so, the insured accessed the plaintiffs’ roof terrace. The plaintiffs alleged that the construction workers installed and stored construction materials on the roof terrace, making the plaintiffs unable to access the terrace. Plaintiffs also alleged that their deck furniture may have suffered damage, and that the workers had a “direct line of sight” into their unit, resulting in the plaintiffs having to leave their unit frequently. Causes of action were for property damage, constructive eviction, partial constructive eviction, and invasion of privacy. Read the court decision
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Reprinted courtesy of Craig Rokuson, Traub Lieberman
Mr. Rokuson may be contacted at crokuson@tlsslaw.com

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Delays Caused When Government (Owner) Pushes Contractor’s Work Into Rainy / Adverse Weather Season

January 13, 2020 — David Adelstein - Florida Construction Legal Updates
There are a number of horizontal construction projects where a contractor’s sequence of work and schedule is predicated on avoiding the rainy season (or certain force majeure events). The reason is that the rainy season will result in delays due to the inability to work (and work efficiently) during the adverse weather (including flooding caused by the weather). If the work is pushed into the rainy season, is such delay compensable if the government (or owner) delayed the project that pushed work out into the rainy season? It very well can be. For example, in Meridian Engineering Co. v. U.S., 2019 WL 4594233 (Fed. Cl. 2019), a contractor was hired by the Army Corps of Engineers to construct a flood control project for a channel in Arizona. Due to delays, including those caused by the government, the project was pushed into the monsoon season, which caused additional delays largely due to flooding caused by the heavy rain. One issue was whether such delays were compensable to the contractor – the government raised the argument that the contractor assumed the risk of potential flooding from the rainy season. The Court found this argument unconvincing:

[The contractor’s] initial construction schedule planned for a completion of the channel invert work, a necessary step in protecting the site from flooding, to be completed by late June 2008…[M]any issues arose in the project’s early stages that led to cumulative substantial delay, including those caused by the government’s failure….The government cannot now claim that [the contractor] assumed the risk of flooding from monsoon season when the government was largely responsible for [the contractor’s] inability to complete the project prior to the beginning of the monsoon season. Simply put, the government cannot escape liability for flood damages when the government is responsible for causing the contractor to be working during the flood-prone season. Meridian Engineering, 2019 WL at *7 (internal citations omitted)

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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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Just When You Thought General Contractors Were Necessary Parties. . .

November 30, 2020 — Christopher G. Hill - Construction Law Musings
Did you think that a subcontractor had to name a general contractor in a mechanic’s lien suit? I did. Did you think that nothing about this changed in the case where a Virginia mechanic’s lien was “bonded off” pursuant to Va. Code Section 43-71? I did. Well, a recent Virginia Supreme Court case, Synchronized Construction Services Inc. v. Prav Lodging LLC, seems to at least create some doubt as to whether the a general contractor is a “necessary” party to a lawsuit by a subcontractor in the case where a bond is posted for release of a mechanic’s lien. In Prav Lodging, the facts were a bit unusual. The day after the mechanic’s lien was recorded by Synchronized Construction Services, Inc. (“Synchronized”) the construction manager, Paris Development Group, the construction manager and de facto general contractor, went out of business. Despite this fact, and after the lien was bonded off, Synchronized sued to enforce the lien and for breach of contract against Paris. The wrinkle here is that Synchronized was unable to serve several defendants, among them Paris, within one year of filing suit as required by Virginia statute. In the Circuit Court, the financing bank moved to dismiss the suit for failure to serve necessary parties. The Circuit Court dismissed the breach of contract count but refused to dismiss the mechanic’s lien count on this basis. 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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Defects in Texas High School Stadium Angers Residents

March 07, 2014 — Beverley BevenFlorez-CDJ STAFF
According to WFAA News, many residents of Allen, Texas were upset when their tax dollars were spent on a new high school football stadium, and they are angry now that alleged construction defects may cause the stadium to close, and perhaps not even reopen again this fall. There “is a disproportionately large amount of our tax dollars that goes just to Allen ISD," Rachel Palmer, an Allen resident, told WFAA News. However, Ben Pogue, president of Pogue Construction, the stadium’s general contractor called the situation “a road bump.” WPAA News also interviewed Dr. Simon Chao of the Department of Civil Engineering at the University of Texas at Arlington: "Cracking is fairly common in concrete," Chao stated. "The problem is the damage water may cause by getting in the cracks.” Read the court decision
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Traub Lieberman Partners Lisa Rolle, Erin O’Dea, and Nicole Verzillo Win Motion for Summary Judgment in Favor of Property Owner

September 30, 2024 — Lisa M. Rolle, Erin O’Dea, Nicole Verzillo - Traub Lieberman
Traub Lieberman Partners Lisa Rolle, Erin O’Dea, and Nicole Verzillo won motion for summary judgment in a premises liability matter brought before the Supreme Court of the State of New York, Westchester County. The Plaintiff allegedly tripped and fell in a pothole on the common driveway of five abutting properties and sustained an injury. The firm represented one of the multiple property owners. Traub Lieberman moved for summary judgment, asserting that the claims against the firm’s client should be dismissed as they did not own, operate, control or make special use of the driveway where the incident occurred. The firm also asserted that the alleged condition of the driveway that allegedly caused Plaintiff’s accident was a non-actionable, trivial defect. The firm also moved to dismiss the cross-claims asserted against them, contending that there was no evidence of negligence on behalf of the firm’s client. As such, the court found that the defect was a non-actionable, trivial defect. The firm secured dismissal of Plaintiff’s claims against the firm’s clients and against all moving and non-moving Defendants. Reprinted courtesy of Lisa M. Rolle, Traub Lieberman, Erin O’Dea, Traub Lieberman and Nicole Verzillo, Traub Lieberman Ms. Rolle may be contacted at lrolle@tlsslaw.com Ms. O'Dea may be contacted at eodea@tlsslaw.com Ms. Verzillo may be contacted at nverzillo@tlsslaw.com Read the court decision
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Building Stagnant in Las Cruces Region

November 20, 2013 — CDJ STAFF
There was an increase in the number of building permits issued in Las Cruces, New Mexico through the first ten months of 2013, but the 2,162 permits represent only a minimal increase over last year’s 2,158 permits. To make matters worse for building suppliers and workers, builders can “pull all the permits for a subdivision at one time but might not start some of those for six months,” said Lee Rawson, the owner of Rawson Builders Supply. For a comparison, during the building boom of 2006, Las Cruces issued 3,529 building permits. The values are down too. Although fewer permits were issued in 2012, their valuation was $147 million, while the marginally larger number in 2013 is worth only $128 million. As a result, the area is losing skilled labor. After 25 consecutive months of declining construction, workers are leaving the construction industry. Mr. Rawson noted that “you can’t just go find that skilled labor, it doesn’t exist.” Read the court decision
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Gru Was Wrong About the Money: Court Concludes that Lender Owes Contractor “Contractually, Factually and Practically”

November 07, 2022 — Matthew DeVries - Best Practices Construction Law
This weekend was all about The Rise of Gru. I love Gru so much that when my children ask for money, my best Gru-like voice belts back: “Now, I know there have been some rumors going around that the bank is no longer funding us….In terms of money, we have no money.” And that’s precisely what many lenders say on distressed projects when the owner fails to make final payment and the contractor looks to the bank for funding: “We have no money for you contractor!” In BCD Associates., LLC v. Crown Bank, CA No. N15c-11-062 (Super. Ct. Del, May 2, 2022), the trial court found that when a bank pays a contractor directly, it can create a legally binding relationship subject to the terms of the construction loan agreements with the owner. The project involved a $13m construction loan between the lender and the owner to renovate a hotel. The owner and contractor entered into an AIA Contract for the construction management services. During construction the contractor would submit payment applications to the lender, who would review and approve the invoices for payment. The lender then would pay 90% of the approved payment application and hold back the remaining 10% as retainage. The contractor was supposed to be paid the final retainage upon completion, which it did not receive in accordance with the terms of the AIA Contract. Read the court decision
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Reprinted courtesy of Matthew DeVries, Burr & Forman LLP
Mr. DeVries may be contacted at mdevries@burr.com

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Apartment Building Damaged by Cable Installer’s Cherry Picker

November 20, 2013 — CDJ STAFF
The owners of Oceana Apartments are suing Shentel Cable Co. and their subcontractors, CCI Systems, Inc. and Big Dog Communications, over the damage caused when a cherry picker rolled downhill and smacked into the building. Kenneth Benn, an employee of Big Dog Communications, was installing utility wire when the cherry picker started moving. The suit alleges that Mr. Benn either failed to properly apply the brakes or immobilize the vehicle before staring work. Mr. Benn is also named as a defendant in the suit. Read the court decision
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