Cambridge Massachusetts Building Expert Directory

Value in Recording Lien within Effective Notice of Commencement

August 03, 2020 — David Adelstein - Florida Construction Legal Updates
Construction lien priority is no joke! This is why a lienor wants to record its construction lien within an effective notice of commencement. A lien recorded within an effective notice of commencement relates back in time from a priority standpoint to the date the notice of commencement was recorded. A lienor that records a lien wants to ensure its lien is superior, and not inferior, to other encumbrances. An inferior lien or encumbrance may not provide much value if there is not sufficient equity in the property. Plus, an inferior lien or encumbrance can be foreclosed. An example of the importance of lien priority can be found in the recent decision of Edward Taylor Corp. v. Mortgage Electronic Registration Systems, Inc., 45 Fla.L.Weekly D1447b (Fla. 2d DCA 2020). In this case, a contractor recorded a notice of commencement for an owner. While an owner is required to sign the notice of commencement that the contractor usually records, in this case, the owner did not sign the notice of commencement. Shortly after, the owner’s lender recorded a mortgage and then had the owner sign a notice of commencement and this notice of commencement was also recorded. When there is a construction lender, the lender always wants to make sure its mortgage is recorded first—before any notice of commencement—for purposes of priority and has the responsibility to ensure the notice of commencement is recorded. Here, the lender apparently did not realize the contractor had already recorded a notice of commencement at the time it recorded its mortgage. 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

No Coverage For Wind And Flood Damage Suffered From Superstorm Sandy

July 27, 2020 — Tred R. Eyerly - Insurance Law Hawaii
The court found that the policy's anti-sequential clause barred coverage for damage caused by Hurricane Sandy. Estate of Doerfler v. Fed. Ins. Co., 2020 N.J. Sup. Unpub. LEXIS 920 (May 14, 2020). The insureds held identical homeowners policies from Chubb and Federal Insurance Company. Damage resulting from flood was not covered. The policies' "surface water exclusion" stated,

[W]e do not cover any loss caused by: flood, surface water, waves, tidal water, overflow of water from a body of water . . . or spray from any of these even if driven by wind.

The insureds also had separate flood insurance policies, insuring the structure of each home for $250,000. Superstorm Sandy created wind gusts as high as eighty miles per hour. A severe storm surge caused tides to rise between nine and eleven feet. The storm surge caused surface water to flood onto plaintiffs' properties and their homes ultimately collapsed. 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

Contractual Waiver of Consequential Damages

January 21, 2019 — David Adelstein - Florida Construction Legal Updates
Contractual waivers of consequential damages are important, whether they are mutual or one-sided. I believe in specificity in that the types of consequential damages that are waived should be detailed in the waiver of consequential damages provision. Standard form construction agreements provide a good template of the types of consequential damages that the parties are agreeing to waive. But, what if there is no specificity in the waiver of consequential damages provision? What if the provision just states that the parties mutually agree to waive consequential damages or that one party waives consequential-type damages against the other party? Let me tell you what would happen. The plaintiff will argue that the damages it seeks are general damages and are NOT waived by the waiver of consequential damages provision. The defendant, on the other hand, will argue that the damages are consequential in nature and, therefore, contractually waived. FOR THIS REASON, PARTIES NEED TO APPRECIATE WHAT DAMAGES ARE BEING WAIVED OR LIMITED, AND POTENTIALLY THOSE DAMAGES NOT BEING WAIVED OR LIMITED, WHEN AGREEING TO A WAIVER OF CONSEQUENTIAL DAMAGES PROVISION! Read the court decision
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Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Wisconsin Court Applies the Economic Loss Doctrine to Bar Negligence Claims for Purely Economic Losses

August 17, 2020 — Rahul Gogineni - The Subrogation Strategist
In Mech. Inc. v. Venture Elec. Contrs., Inc., No. 2018AP2380, 2020 Wisc. App. LEXIS 170, the Court of Appeals of Wisconsin, District Two, considered whether a party may bring a negligence claim for purely economic damages. In upholding the lower court, the appellate court found that a party is barred by the Economic Loss Doctrine from bringing a negligence claim for purely economic damages. Both parties involved in this action were subcontractors on a building project at the Great Lakes Research Facility for the University of Wisconsin-Milwaukee. As a result of Venture Electrical Contractors, Inc. (Venture) not paying for requested work, Mechanical, Inc. (Mechanical) sued Venture for $11,961.31. Venture, in turn, countersued in negligence for $1.1 million for costs incurred due to delays and untimely performance. Mechanical sought dismissal of the negligence claim based upon the Economic Loss Doctrine. Finding that the Economic Loss Doctrine applies to purely economic losses, the trial court dismissed Venture’s negligence claim. Venture appealed to the Court of Appeals of Wisconsin. Read the court decision
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Reprinted courtesy of Rahul Gogineni, White and Williams LLP
Mr. Gogineni may be contacted at goginenir@whiteandwilliams.com

Complying With Data Breach Regulations in the Construction Industry

November 24, 2019 — Ryan Bilbrey - Construction Executive
Recent data breach incidents—like the massive Capital One cyberattack, where a former employee accessed more than 100 million customer accounts and credit card applications—have left many users questioning how safe their information really is in the hands of companies. There is reason to be concerned. More than 4.1 billion records were exposed in nearly 4,000 data breaches reported in the first half of 2019 alone, according to the 2019 MidYear QuickView Data Breach Report. Construction companies are not immune. As the industry becomes more reliant on technology—using augmented reality, Building Information Modeling and drones on construction sites, for example—construction companies are becoming greater targets for hackers looking to gain a financial or strategic advantage. Instead of assuming a company will never experience a breach (or rather, denying that it will ever happen), it’s important to be aware of possible threats and establish data breach response policies to minimize potentially catastrophic fallout. Reprinted courtesy of Ryan Bilbrey, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Bilbrey may be contacted at rbilbrey@biaprotect.com

Point Taken: The UK Supreme Court Finally Confirms the General Law of Liquidated Damages (LDs)

April 04, 2022 — Vincent C. Zabielski & Julia Kalinina Belcher - Gravel2Gavel Construction & Real Estate Law Blog
In a long-awaited decision which overturned the Court of Appeal’s ruling in the Triple Point Technology vs PTT Public Company case, the UK Supreme Court confirmed the general law of LDs, which is that—absent clear words to the contrary—they accrue up to the date of termination of a contract regardless of whether the contractor completes the work; after that, general damages are recoverable. This approach was held to reflect “commercial reality and the accepted function of liquidated damages.” Although the contract in question was not a construction contract, the decision is equally relevant in the construction sphere. By way of reminder, Triple Point failed to complete the works under Phase 1 of a contract for the design, installation, maintenance and licencing of software. Despite agreeing a revised project plan, PTT gave notice to terminate. Reprinted courtesy of Vincent C. Zabielski, Pillsbury and Julia Kalinina Belcher, Pillsbury Mr. Zabielski may be contacted at vincent.zabielski@pillsburylaw.com Ms. Belcher may be contacted at julia.belcher@pillsburylaw.com Read the court decision
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New York’s Comprehensive Insurance Disclosure Act Imposes Increased Disclosure Requirements On Defendants at the Beginning of Lawsuits

February 07, 2022 — Craig Rokuson & Lisa M. Rolle - Traub Lieberman Insurance Law Blog
On December 31, 2021, New York Governor Kathy Hochul signed into law the Comprehensive Insurance Disclosure Act, which amends Section 3101(f) of the Civil Practice Law & Rules (CPLR) to require the automatic disclosure of insurance-related items within sixty days of the filing of an answer in a civil suit. For lawsuits pending as of the effective date of the Act, the disclosures required by Section 3101(f) must be provided by March 1, 2022. Pursuant to amended Section 3101(f), defendants (including third-party defendants, cross-claim defendants, and counterclaim defendants) must provide the following information to plaintiffs within sixty days of answering the affirmative pleading, accompanied with a certification from both the defendant and his/her/their/its defense counsel that the disclosures are accurate and complete:

Copies of all insurance policies that may be liable to satisfy a judgment in the lawsuit, including the insurance application.
The contact information of any individuals responsible for adjusting the claim on each policy, including his/her/their phone number and email address. If a TPA is involved, his/her/their contact information must also be disclosed.

Reprinted courtesy of Craig Rokuson, Traub Lieberman and Lisa M. Rolle, Traub Lieberman Mr. Rokuson may be contacted at crokuson@tlsslaw.com Ms. Rolle may be contacted at lrolle@tlsslaw.com Read the court decision
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ETF Bulls Bet Spring Will Thaw the U.S. Housing Market

April 08, 2014 — Corinne Gretler – Bloomberg
Build it and they will come, if it’s not too chilly. Traders have turned bullish on a security that tracks home construction companies, appliance makers and furniture retailers as spring finally ends the harsh winter. As the SPDR S&P Homebuilders ETF (XHB) heads for its first weekly gain since February, investors are buying options betting that the rebound will keep going. The cost of bullish contracts has risen to the highest versus bearish ones in 2 ½ years. The ETF has gained 2.2 percent this week. The exchange-traded fund of companies such as Ryland Group Inc., Whirlpool Corp. and Home Depot Inc. has rebounded 8 percent after reaching its lowest level this year on Feb. 3 as investors attribute weakness in the housing market to winter weather. Between December and February, snow covered 1.42 million square miles of the continental U.S., the 10th-largest snow cover in records going back to 1966, according to the National Climatic Data Center. Read the court decision
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Reprinted courtesy of Corinne Gretler, Bloomberg
Ms. Gretler may be contacted at cgretler1@bloomberg.net

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