Cambridge Massachusetts Building Expert Directory

Who Says You Can’t Choose between Liquidated Damages or Actual Damages?

October 11, 2017 — Kevin Walton - Snell & Wilmer Real Estate Litigation Blog
In Colorado, courts enforce liquidated damages provisions if three elements are satisfied: (1) the parties intended to liquidate damages; (2) the amount of liquidated damages was a reasonable estimate of the presumed actual damages caused by a breach; and (3) at the time of contracting, it was difficult to ascertain the amount of actual damages that would result from a breach. But what happens when a contract gives a party a right to choose between liquidated damages or actual damages? This seems troublesome because it allows a party to set the floor for their damages without limitation if actual damages exceed the contractual amount. As a matter of first impression, the Colorado Supreme Court addressed this issue in Ravenstar, LLC v. One Ski Hill Place, LLC, 401 P.3d 552 (Colo. 2017). In Ravenstar, plaintiffs contracted to buy condominiums from a developer. As part of their contracts, plaintiffs deposited earnest money and construction deposits equal to 15% of each unit’s purchase price. Plaintiffs breached their contract by failing to obtain financing and failing to close by the closing date. Each contract’s damages provision provided that if a purchaser defaulted, the developer had the option to retain all or some of the deposits as liquidated damages or, alternatively, to pursue actual damages and apply the deposits to that award. After plaintiffs defaulted, the developer chose to keep plaintiffs’ deposits as liquidated damages. Plaintiffs sued for return of their deposits. Read the court decision
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Reprinted courtesy of Kevin Walton, Snell & Wilmer
Mr. Walton may be contacted at kwalton@swlaw.com

Congratulations to Haight’s 2021 Super Lawyers San Diego Rising Stars

May 03, 2021 — Catherine M. Asuncion, Arezoo Jamshidi & Michael C. Parme - Haight Brown & Bonesteel LLP
Haight congratulates partners Michael Parme and Arezoo Jamshidi and associate Catherine Asuncion who were selected to the 2021 San Diego Super Lawyers Rising Stars list. Reprinted courtesy of Catherine M. Asuncion, Haight Brown & Bonesteel LLP, Arezoo Jamshidi, Haight Brown & Bonesteel LLP and Michael C. Parme, Haight Brown & Bonesteel LLP Ms. Asuncion may be contacted at casuncion@hbblaw.com Ms. Jamshidi may be contacted at ajamshidi@hbblaw.com Mr. Parme may be contacted at mparme@hbblaw.com Read the court decision
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Reprinted courtesy of

Benefits to Insureds Under Property Insurance Policy – Concurrent Cause Doctrine

December 08, 2016 — David Adelstein – Florida Construction Legal Updates
The Florida Supreme Court in Sebo v. American Home Assurance Co., Inc., 41 Fla. L. Weekly S582a (Fla. 2016) gave really good news to claimants seeking recovery under a first-party all-risk property insurance policy. The Court held that the concurrent cause doctrine and not the efficient proximate cause doctrine was the proper theory of recovery to apply when multiple perils—an excluded peril and a covered peril-combined to create a property loss. Read the court decision
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Reprinted courtesy of David Adelstein, Katz, Barron, Squitero, Faust, Friedberg, English & Allen, P.A.
Mr. Adelstein may be contacted at dma@katzbarron.com

Housing Starts Surge 23% in Comeback for Canadian Builders

July 15, 2019 — Theophilos Argitis - Bloomberg
Canadian housing starts unexpectedly surged in April, in another sign of recovery for the nation’s battered real estate market. Builders started work on an annualized 235,460 units last month, the highest level in 10 months and up 23 percent from 191,981 units in March, the Canada Mortgage and Housing Corp. reported Wednesday. The gain was driven by new multi-unit construction in Toronto and Vancouver. Read the court decision
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Reprinted courtesy of Theophilos Argitis, Bloomberg

Blackstone Said in $1.7 Billion Deal to Buy Apartments

January 21, 2015 — Hui-yong Yu – Bloomberg
Blackstone Group LP (BX), the biggest owner of U.S. single-family houses, agreed to buy 36 apartment properties across the country for about $1.7 billion as it expands its rental business, according to two people with knowledge of the transaction. The low-rise, garden-style properties are being sold by Praedium Group, a New York-based real estate investment firm, and contain about 11,000 apartments, said the people, who asked not to be identified because the deal is private. About half of the buildings are in California, Washington, D.C., and Boston, with the rest located around the U.S., they said. Read the court decision
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Reprinted courtesy of Hui-yong Yu, Bloomberg
Hui-yong Yu may be contacted at hyu@bloomberg.net

Claims against Broker for Insufficient Coverage Fail

May 10, 2021 — Tred R. Eyerly - Insurance Law Hawaii
After a coverage dispute for damage caused by Hurricane Harvey was settled, the insured's claims against its insurance broker for providing insufficient coverage were dismissed. Hitchcock Indep. Sch. Dist. v. Arthur J. Gallagher & Co., 2021 U.S. Dist. LEXIS 57452 (S.D. Texas Feb. 26, 2021). The School District suffered $3.5 million in property damage after Hurricane Harvey struck. Its insurers denied coverage and the School District sued. During the litigation, the School District learned that the policies contained an arbitration clause and a New York choice of law provision. Rather than pursue its claims in arbitration, the School District settled with its insurers and sued its broker for failing to obtain insurance without arbitration or choice of law provisions. The broker moved to dismiss The School District claimed that it had to settle with the insurers for less than what it would have settled had the arbitration and choice of law provisions not been in its policies. The court found this novel theory to be based upon pure speculation 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

Contractor Entitled to Defense for Alleged Faulty Workmanship of Subcontractor

February 10, 2020 — Tred R. Eyerly - Insurance Law Hawaii
Applying Nevada law, the Federal District Court in Florida found that the general contractor was entitled to a defense of claims based upon alleged faulty workmanship of a subcontractor. KB Home Jacksonville LLC v. Liberty Mutual Fire Ins. Co, 2019 U.S. Dist. LEXIS 151235 (M.D. Fla. Sept 5, 2019). KB Home completed six residential developments utilizing various subcontractors. One subcontractor was Florida State Plastering, LLC (FSP) for installing stucco. Eighty-eight complaints against KB Home implicated FSP's stucco work. Plaintiffs alleged that the stucco subcontractor's work suffered from construction defects, causing damages not only to the exterior stucco, but also the underling wire lath, paper backing, house wrap, wood sheathing, interior walls, interior floors and other property. Ironshore insured FSP under a CGL policy. KB Home was an additional insured for liability for property damage caused by "your work." KB Home was also insured under its own CGL policy with Liberty Mutual. Both insurers refused to defend. 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

AAA Revises its Construction Industry Arbitration Rules and Mediation Procedures

April 02, 2024 — Garret Murai - California Construction Law Blog
This one is for the lawyers. Or for those of you who are claims-minded . . . Effective March 1, 2024, the American Arbitration Association (“AAA”) revised its Construction Industry Arbitration Rules and Mediation Procedures. For those involved in construction, this is important since the AAA Rules are the default arbitration rules contained in AIA form contracts and are often the arbitration rules referenced in other construction contracts as well. So, what are the changes?

General: Fax numbers have gone the way of the Dodo bird and replaced by email addresses for all parties. Also, while already done in practice, preliminary hearings may now be held via videoconference in addition to telephone and in-person (Rule R-23).

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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES