Cambridge Massachusetts Building Expert Directory

Toolbox Talk Series Recap – Considerations for Optimizing Dispute Resolution Clauses

June 05, 2023 — Michael Filbin - The Dispute Resolver
In the April 27, 2023 edition of Division 1's Toolbox Talk Series moderated by Manuel del Valle, Sergio Andre Laclau (Partner at Mello Torres) and Liza Akins (Senior Assistant GC and Division Counsel at ARCO Design/Build) offered the following strategies for drafting effective ADR clauses in construction contracts:

Define the ADR process for various types of disputes.

Not all disputes on a construction project are the same, and the parties can tailor the ADR process to different situations. For example, the parties could choose to arbitrate complex disputes and resolve minor claims through mediation. Differentiating the ADR process between complex and minor disputes can save parties time and money. While Liza prefers arbitration for complex claims because you can get a quick and final decision from an arbitrator experienced with construction disputes, she noted that arbitration costs can add up quickly. Therefore, if the dollar amount in dispute is relatively small, arbitration may not make sense financially. Mediation tends to be a comparatively cheaper and faster option. Read the court decision
Read the full story...
Reprinted courtesy of Michael Filbin, Cozen O'Connor
Mr. Filbin may be contacted at mfilbin@cozen.com

The Drought Is Sinking California

August 19, 2015 — Jennifer Oldham – Bloomberg
Land in California’s central valley agricultural region sank more than a foot in just eights months in some places as residents and farmers pump more and more groundwater amid a record drought. The ground near Corcoran, 173 miles (278 kilometers) north of Los Angeles, dropped about 1.6 inches every 30 days. One area in the Sacramento Valley was descending about half-an-inch per month, faster than previous measurements, according to a report released Wednesday by the Department of Water Resources. NASA completed the study by comparing satellite images of Earth’s surface over time. “Groundwater levels are reaching record lows -- up to 100 feet lower than previous records,” Mark Cowin, the department’s director, said in a statement. “As extensive groundwater pumping continues, the land is sinking more rapidly and this puts nearby infrastructure at greater risk of costly damage.” Read the court decision
Read the full story...
Reprinted courtesy of Jennifer Oldham, Bloomberg

Developer Pre-Conditions in CC&Rs Limiting Ability of HOA to Make Construction Defect Claims, Found Unenforceable

August 16, 2021 — Garret Murai - California Construction Law Blog
The Davis-Stirling Common Interest Development Act (Civ. Code §4000, et seq.), also known simply as “Davis-Stirling,” is a statute that applies to condominium, cooperative and planned unit development communities in California. The statute, which governs the formation and management of homeowners associations or HOAs, also governs lawsuits filed by HOAs for construction defects. In the next case, Smart Corners Owner Association v. CJUF Smart Corner LLC, Case No. D076775 (May 20, 2021), the 4th District Court of Appeal addressed the pre-litigation voting requirements of Davis-Stirling and the impact of recent amendments to the Act. The Smart Corners Case In 2004, CJUF Smart Corner LLC contracted with Hensel Phelps Construction Company for the construction of the Smart Corner condominium project, a 19-story mixed-use development with 301 residential units and common areas, in San Diego, California. As part of the development an HOA was formed, the Smart Corner Owner Association. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Making the Construction Industry a Safer place for Women

February 22, 2018 — Laura Parsons - CDJ STAFF
Women make up 47 percent of the total U.S. workforce yet they only hold approximately 9 percent of construction jobs nationwide. Because of this minority, women endure health and safety issues that men usually don’t, according to Safety.BLR.com’s article “OSHA renews alliance to protect women in construction.” The main areas that women face problems in the construction industry are healthy, safety and workplace culture. Women are potentially exposed to sexual harassment, demeaning remarks, and bodily assaults. Most of personal protective equipment (PPE) and tools are made for the typical male body to use and operate and are too heavy or oversized for many women. The National Association of Women in Construction (NAWIC) partnered with OSHA in 2013 and just renewed their alliance aiming to improve upon workplace intimidation and violence as well as sanitation and PPE. The partnership is committed “to providing NAWIC members and others with information, guidance, and access to training resources that will help them protect the health and safety of workers, and understand the rights of workers and the responsibilities of employers under the Occupational Safety and Health Act (OSH Act).” This will be achieved by the implementation of national rules, laws, and standards as well as the circulation of preventative information. Read the court decision
Read the full story...
Reprinted courtesy of

Court of Appeals Finds Arbitration Provision Incorporated by Reference Unenforceable

September 20, 2021 — Garret Murai - California Construction Law Blog
Subcontractors have gotten accustomed to incorporation clauses in their contracts. While an incorporation clause can incorporate any document, most typically, it’s the prime contract between the general contractor and the project owner. Subcontractors will sometimes even accept these documents sight unseen which can be a recipe for disaster. But not in the next case. In Remedial Construction Services, LP v. AECOM, Inc., Case No. B303797 (June 15, 2021), the 2nd District Court of Appeal examined whether a subcontractor was bound to an arbitration provision contained in a prime contract that was incorporated by reference into the subcontractor’s contract. In this case, it was the prime contractor who was in for a surprise. The Remedial Construction Case In 2015, Shell Oil Products US, LLC entered into a prime contract with AECOM Technical Services, Inc. for the demolition, remediation and restoration of the Gaviota oil terminal in Goleta, California. AECOM in turn entered into a subcontract with Remedial Construction Services, LP to perform portions of the work. When AECOM refused to pay Remedial for delay costs asserted by Remedial, Remedial filed suit. Read the court decision
Read the full story...
Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

Preparing For and Avoiding Residential Construction Disputes: For Homeowners and Contractors

September 18, 2023 — Christopher G. Hill - Construction Law Musings
For this week’s Guest Post Friday here at Construction Law Musings, we welcome a great friend. Scott Wolfe Jr. (@scottwolfejr)is a construction attorney in Louisiana, Washington and Oregon, and is the founding member of the construction practice Wolfe Law Group. He authors the Construction Law Monitor. He is also the founder of the mechanic lien and preliminary notice filing service, Zlien, and the author of its Construction Lien Blog. Residential construction disputes come in all shapes and sizes, but very typically have one thing in common: they can get very nasty. This is understandable, especially in today’s economy. The homeowner is spending hard-earned money on something very personal to them, their home. They want it done right. The contractor is working on really tight margins, and with a diligent client. Read the court decision
Read the full story...
Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

Delays in Filing Lead to Dismissal in Moisture Intrusion Lawsuit

September 09, 2011 — CDJ STAFF

The Alabama Court of Civil Appeals has upheld a summary judgment in the case of Franklin v. Mitchell. Walter Mitchell, doing business as Southern Classic Construction built a new home for the Franklins. The Franklins moved into the home in October 2001. In April 2006 they discovered sagging floors in both the bathroom and kitchen. They contacted Mitchell who suggested the flooring might be defective. The Franklins spent eight months attempting to contact the flooring manufacturer.

In March 2007, the Franklins had the home inspected. The sagging was determined to be due to a loss of strength in the decking because of condensation from the air conditioning system. Air returns were not properly sealed and drawing moisture into the structure. There was mold on the decking and floor joints.

When Mitchell was contacted by the Franklins, he told them his one-year warranty had expired but had the HVAC subcontractor, Southern Mechanical Heating & Air (owned by Mitchell’s father, Jim Mitchell), look at the situation. SMHA replaced and braced subfloors. Later, they entered the crawl space to tape ducts, seal the air return, and insulate the air vent housing. The Franklins were not satisfied with the repairs, as not all the ducts were taped, nor were the air vent housings insulated.

Franklin complained to Walter Mitchell who again cited his one-year warranty. Jim Mitchell said he would not report complaints to his insurer, stating that the repairs were unnecessary, that the work had been done correctly in the first place, and it was only done at the request of Walter Mitchell.

In February 2009, the Franklins sued Walker Mitchell. Mitchell denied the claims, citing in part the statute of limitations. Mitchell also filed complaints against three subcontractors, including his father’s firm. Mitchell received a summary judgment as the case started after Alabama’s six-year statute of limitations.

The appeals court rejected the Franklin’s argument that the claim of damage did not start until they were aware it was due to a construction defect. The court noted that as Walter Mitchell was licensed as a “residential home builder, the statute the Franklins cite did not apply, as it concerns architects, engineers, and licensed general contactors.”

Nor did they feel that Mitchells’ claim that his warranty had expired were sufficient to override the statute of limitations, quoting an earlier case, “Vague assurances do not amount to an affirmative inducement to delay filing suit.” Their claim of subsequent negligent repairs was rejected because Mitchell did not direct the specific actions taken by his father’s firm.

Read the court’s decision…

Read the court decision
Read the full story...
Reprinted courtesy of

Spreading Cracks On FIU Bridge Failed to Alarm Project Team

May 20, 2019 — Scott Judy & Richard Korman - Engineering News-Record
On the morning of last year’s Florida International University pedestrian bridge collapse, when the engineer of record assured project team members that there were no safety risks related to cracks propagating across a part of the unusual single-truss structure, other project team members voiced mild concern, but no alarm. In hindsight, considering that the bridge had no inherent structural redundancy as it sat, incomplete, straddling a busy highway—and would suffer a sudden, catastrophic and deadly collapse just hours later—the team’s lack of urgency remains puzzling, say engineering experts contacted by ENR for comment. Reprinted courtesy of Scott Judy, ENR and Richard Korman, ENR Mr. Judy may be contacted at mailto:judys@enr.com Mr. Korman may be contacted at kormanr@enr.com Read the court decision
Read the full story...
Reprinted courtesy of

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES