Cambridge Massachusetts Building Expert Directory

Attorney Risks Disqualification If After Receiving Presumptively Privileged Communication Fails to Notify Privilege Holder and Uses Document Pending Privilege Determination by Court

May 03, 2017 — David W. Evans & Stephen J. Squillario - Haight Brown & Bonesteel LLP
In McDermott Will & Emery LLP v. Superior Court (4/18/2017 – No. G053623), the Fourth Appellate District, in a 2-1 decision, considered two distinct issues: 1. Whether the attorney-client privilege for a confidential e-mail communication between a client and his attorney had been waived by the client’s inadvertent disclosure of the communication to a third party; and 2. Whether the opposing counsel’s failure to respect the claimed privilege as to the inadvertently produced document or to follow the rules for handling such documents set forth in State Compensation Ins. Fund v WPS, Inc. (1999) 70 Cal.App.4th 644 (State Fund) supported the trial court’s disqualification of counsel and his law firm. This case arose from an intra-family dispute over the deceased matriarch’s substantial investment holdings, a related probate matter, and two subsequent legal malpractice actions. The opinion sets forth in great detail the facts surrounding the claimed inadvertent disclosure by the client (i.e., the privilege holder) of the subject attorney-client e-mail communication, its subsequent dissemination to, and use by, the client’s family members, the ultimate receipt and review by an opposing family member’s counsel, the efforts by the client’s counsel to assert the privilege and “claw-back” the document, and in the face of this privilege claim, the opposing counsel’s extensive use of the document during discovery, including depositions, in the legal malpractice actions. The opposing counsel, who had received the subject document from his own client, had independently concluded that the clearly privileged document lost its privileged status, believing that the privilege had been waived either because of disclosure to third parties or that his obligation to return inadvertently disclosed documents only applied to those produced in litigation during discovery. As a result, the opposing counsel refused all demands for the return or destruction of the document and insisted upon continuing to use it. This dispute finally came to a head over two years after the client’s disclosure in the context of the client’s motion for a judicial determination that the document was privileged (which the trial court granted) and then a motion to disqualify the opposing counsel (which the trial court also granted); both decisions were eventually reviewed by the appellate court. Reprinted courtesy of David W. Evans, Haight Brown & Bonesteel LLP and Stephen J. Squillario, Haight Brown & Bonesteel LLP Mr. Evans may be contacted at devans@hbblaw.com Mr. Squillario may be contacted at ssquillario@hbblaw.com Read the court decision
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Request for Stay Denied in Dispute Over Coverage for Volcano Damage

August 10, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Although there were concurrent state and federal proceedings regarding the insureds' claims for damage caused by Kilauea Volcano, the federal district court refused to dismiss or stay the federal action. Aqulina v Certain Underwriters at Lloyd's Syndicate #2003, 2020 U.S. District Ct. LEXIS 101832 (D. Haw. June 10, 2020). Plaintiffs held homeowner's policies from Lloyd's that were brokered and underwritten by various defendants. Coverage from the May 2018 eruption of Kilauea Volcano was denied based upon an exclusion precluding coverage for lava-related damage. Plaintiffs sued Lloyds and various brokers in federal court, alleging that defendants had engaged in a deceptive scheme to defraud plaintiffs and deprive them of meaningful coverage. Lawsuits were also filed in state court, with plaintiffs arguing their losses were covered by their policies and that defendants wrongfully relied solely on the lava exclusion to deny claims. 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

Resolve to Say “No” This Year

January 26, 2016 — Christopher G. Hill – Construction Law Musings
We hear all of the time how to “get to ‘yes'” and how doing so can lead to more business and of course more business leads to more profits. Purely logical, right? Without construction owners with work for general contractors to perform and general contractors hiring subcontractors to perform that work, construction grinds to a halt and clients and friends of mine in the construction industry don’t make money. For this to happen, “yes” has to happen more often than not. So, why the title of this post? Chalk it up to spending much if not all of my time as a construction attorney either anticipating or dealing with the Murphy’s Law ruled nature of the construction world or to the “Monday morning quarterback” nature of my profession, but I see numerous instances where not taking the job or signing the bad contract would have led to a better outcome than performing the work. What do I mean by this? I mean that as a construction company (particularly one that is lower down the “payment chain” and therefore less in control of the flow of money), you need to carefully evaluate not only the contract presented, but whether you get a good feeling about the party with whom you are contracting. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Wendel Rosen’s Construction Practice Group Receives “Tier 1” Ranking by U.S. News and World Reports

November 10, 2016 — Garret Murai – California Construction Law Blog
Wendel Rosen’s Construction Practice Group has received a “Tier 1” ranking by U.S. News and World Reports in its 2017 Best Law Firms rankings and the firm as a whole has been named one of the “Best Law Firms.” This is the fourth consecutive year that Wendel Rosen’s Construction Practice Group has achieved a “Tier 1” ranking. 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

Seattle Expands Bridge Bioswale Projects

May 11, 2020 — Jim Parsons - Engineering News-Record
The success of engineered systems to capture stormwater runoff from Seattle’s Aurora Avenue Bridge has spurred construction of additional measures that proponents say will increase total filtering capacity by another two million gallons per year. Jim Parsons, Engineering News-Record ENR may be contacted at ENR.com@bnpmedia.com Read the full story... Read the court decision
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Enforceability Of Subcontract “Pay-When-Paid” Provisions – An Important Update

June 15, 2020 — Patrick McNamara - Porter Law Group
A California Court of Appeals opinion published earlier this month brings a change to payment bond claims brought by unpaid subcontractors and suppliers. The decision (Crosno Construction, Inc. v. Travelers Casualty and Surety Company of America) places limitations on a payment bond surety’s ability to rely on subcontract “pay-when-paid” language, stating that a payment provision typically found in subcontracts is contrary to the “reasonable time” statutory requirement and will not be enforced. This represents a major shift in California construction payment bond claim rights. Plaintiff Crosno Construction, Inc. (“Crosno) was a subcontractor to general contractor Clark Brothers (“Clark”), who was principal on a public works payment bond issued by Travelers. The owner was a public agency district (“District.”) Crosno had completed most of its subcontract work when a dispute between District and Clark arose, causing the project to stop. Crosno then sought payment through a payment bond claim against Travelers. Travelers denied the claim, relying on the subcontract’s payment provisions and asserting the defense that it had no obligation to pay on the bond claim because the litigation between Clark and the District had not yet reached its conclusion. Subcontract. The subcontract between Clark and Crosno contained a “pay-when-paid” provision stating that Clark would pay Crosno within a reasonable time after receiving payment from the District. In defining “a reasonable time,” the subcontract language provided that the time for payment “in no event shall be less than the time [Clark] and [Crosno] require to pursue to conclusion their legal remedies against [District] or other responsible party to obtain payment.” Read the court decision
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Reprinted courtesy of Patrick McNamara, Porter Law Group
Mr. McNamara may be contacted at pmcnamara@porterlaw.com

General Contractors Can Be Sued by a Subcontractor’s Injured Employee

November 05, 2014 — Craig Martin - Construction Contractor Advisor
General contractors that exercise control over the worksite can be sued by a subcontractor’s injured employee. The Nebraska Supreme Court’s recent opinion, Gaytan v. Wal-Mart, should serve as a reminder that general contractors may be responsible for the safety of all workers on a job site. In this case, a roofing subcontractor’s employee died after falling through the roof of the under-construction Wal-Mart. The deceased employee’s estate sued Wal-Mart and Gram Construction, the general contractor, alleging that they were negligent in maintaining a safe worksite. The court initially acknowledged that an owner, the employer of an independent contractor, does not typically owe a subcontractor’s employee a duty because the owner typically has no control over the manner in which the work is to be done by the contractor. This general rule, however, has exceptions, such as where the owner retains control over the contractor’s work. But, for the exception to apply, the owner must have (1) supervised the work that caused the injury, (2) actual or constructive knowledge of the danger that caused the injury, and (3) the opportunity to prevent the injury. Read the court decision
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Reprinted courtesy of Craig Martin, Lamson, Dugan and Murray, LLP
Mr. Martin may be contacted at cmartin@ldmlaw.com

Updated 3/13/20: Coronavirus is Here: What Does That Mean for Your Project and Your Business?

March 16, 2020 — Alexander Gorelik, Joshua E. Holt, Brian N. Krulick, Shoshana E. Rothman, A. Michelle West, & Brian S. Wood - Smith Currie
The outbreak of COVID-19 (“coronavirus”) has wreaked a considerable human toll of death, physical suffering, fear, and anxiety internationally. Much of the fear and anxiety results from a lack of information or a full understanding about the spread of the disease, protection against infection, and treatment. At Smith, Currie & Hancock, we urge our clients, friends, and colleagues to take seriously, but calmly and prudently, the threat of this disease to protect yourselves, your loved ones, and your businesses. The first step in that process is to inform yourselves with reliable information. Toward that end, we direct your attention to the Centers for Disease Control and Prevention’s Coronavirus Disease 2019 website: https://www.cdc.gov/coronavirus/2019-ncov/index.html In addition to the human toll, coronavirus has caused substantial disruptions to economies worldwide. In that regard, the adage “a picture is worth a thousand words,” is particularly foreboding. Satellite images taken by the U.S. National Aeronautics and Space Administration (NASA) of China at the outset of the coronavirus outbreak and approximately a month later show a dramatic decline in air pollution, signifying and illustrating a sharp decline in industrial activity and transportation caused by the disease. Reprinted courtesy of Smith Currie attorneys Alexander Gorelik, Joshua E. Holt, Brian N. Krulick, Shoshana E. Rothman, A. Michelle West, and Brian S. Wood Mr. Gorelik may be contacted at agorelik@smithcurrie.com Mr. Holt may be contacted at jeholt@smithcurrie.com Mr. Brian may be contacted at bnkrulick@smithcurrie.com Ms. Shoshana may be contacted at serothman@smithcurrie.com Ms. West may be contacted at amwest@smithcurrie.com Mr. Wood may be contacted at bswood@smithcurrie.com Read the court decision
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