Cambridge Massachusetts Building Expert Directory

Court Finds That $400 Million Paid Into Abatement Fund Qualifies as “Damages” Under the Insured’s Policies

November 21, 2022 — Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery Blog
In Sherwin-Williams Co. v. Certain Underwriters at Lloyd’s London, et al., the Court of Appeals for Ohio’s Eighth District reversed the lower court, finding that money paid by the insured into an abatement fund was “damages” as that undefined term was used in the policyholder’s insurance policies. 2022-Ohio-3031, ¶ 1. Sherwin-Williams is a cautionary tale about how insurers may try to narrow the meaning of undefined terms in their insurance policies. The dispute in Sherwin-Williams focused on coverage for $400 million that the policyholder and other defendants were ordered to pay into an abatement fund to be used by California cities and counties to mitigate the hazards caused by lead paint in homes. Id. ¶ 1. Although the underlying litigation proceeded in California, Ohio law governed coverage, which raised issues of first impression in Ohio. Id. Among other things, the insurers argued that the money paid into the abatement fund did not qualify as “damages” under the policies. Id. ¶ 57. The insured argued that, because the insurers did not define “damages” in the policies, the term had to be given its ordinary meaning. Id. ¶ 56. Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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Wall Street Is Buying Starter Homes to Quietly Become America’s Landlord

February 27, 2023 — Patrick Clark - Bloomberg
Javier Vidana started out as a real estate agent in 2013, when Arizona’s Salt River Valley seemed wide open. It was the aftermath of a housing market crash that had seen the typical home value in the Phoenix metro area fall more than 50%, and a single parent with good credit could tap loan programs geared toward first-time homeowners and find a pretty decent place to live. For Vidana, the challenge was convincing potential clients that a house was something they wanted to own. “We were on the phone begging people to buy,” he says. “There was no buyer confidence whatsoever.” The economy crawled forward, and the housing market with it. Vidana made a specialty of tutoring young buyers on real estate basics. Soon he was supplementing his commission income by selling how-to PDFs on his website and collecting ad revenue on his YouTube channel. Then the pandemic sparked a boom that gave him something new to explain. Americans responded to the work-from-home era by house shopping, and no big city was hotter than Phoenix. The median home was worth about $285,000 at the beginning of the pandemic; it was valued at $435,000 two years later. It wasn’t unheard of for a seller to receive 50 offers or more, or for a prospective buyer to make offers on a dozen different homes before finally closing a deal. Read the court decision
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Reprinted courtesy of Patrick Clark, Bloomberg

Wilke Fleury Attorneys Featured in 2022 Northern California Super Lawyers and Rising Stars Lists

September 05, 2022 — Wilke Fleury LLP

Wilke Fleury is extremely proud that 14 of its incredibly talented attorneys are featured in the Annual List of Top Attorneys in the 2022 Northern California Super Lawyers magazine! Super Lawyers rates attorneys in each state using a patented selection process and publishes a yearly magazine issue that produces award-winning features on selected attorneys. Congratulations to this talented group:

Super Lawyers of 2022!	Rising Stars of 2022!
Daniel L. Egan	Islam M. Ahmad
David A. Frenznick	Kathryne E. Baldwin
George A. Guthrie	Adriana C. Cervantes
Ronald L. Lamb	Aaron R. Claxton
Neal C. Lutterman	José L. Parra
Stephen K. Marmaduke
Matthew W. Powell
Trevor L. Stapleton
Steven J. Williamson

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Reprinted courtesy of Wilke Fleury LLP

“Bound by the Bond”

September 02, 2024 — Daniel Lund III - Lexology
A New York trial court granted judgment in favor of a performance bond surety on a construction project, based upon the failure of the claiming party to abide by the terms of the bond. The “AIA Document A312” bond form – described by the court (quoting surety law authority) to be “one of the clearest, most definitive, and widely used type of traditional common law ‘performance bonds’ in private construction” – contains various procedures which must be honored as a “condition precedent to an action to recover” on the bond/against the surety. One of those prerequisites is a “declaration of default” concerning the contractor principal (here, a subcontractor). The case involved the construction of an 85-story skyscraper in midtown Manhattan, and the performance of the subcontract for the building’s superstructure. The bonded contract was at a value of approximately $25,000,000 and obligated the sub to provide a performance bond “in a form similar to the [A312 bond],” and which was otherwise satisfactory to the obligee/construction manager. Read the court decision
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Reprinted courtesy of Daniel Lund III, Phelps
Mr. Lund may be contacted at daniel.lund@phelps.com

Exculpatory Provisions in Business Contracts

May 30, 2018 — David Adelstein - Florida Construction Legal Updates
An exculpatory provision in a contract is a provision that relieves one party from liability for damages. It shifts the risk of an issue entirely to the other party. Such a provision is generally drafted by the party preparing the contract that is looking to eliminate or disclaim liability associated with a particular risk, oftentimes a risk within their control. These provisions are also known as limitation of liability provisions because they do exactly that — limit liability as to a risk. For this reason, they can be useful provisions based on the context of certain risks, and are provisions that are included in business contracts (such as construction contracts). While such clauses are disfavored, they are enforceable if they are drafted clearly, unambiguously, and unequivocally. If they are unclear, ambiguous, or equivocal, they will construed against enforcement. See Obsessions In Time, Inc. v. Jewelry Exchange Venture, LLP, 43 Fla.L.Weekly D1033a (Fla. 3d DCA 2018) (finding exculpatory clause in lease ambiguous and, therefore, unenforceable as to lessor looking to benefit from the exculpatory clause). Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at dadelstein@gmail.com

An Interesting Look at Mechanic’s Lien Priority and Necessary Parties

May 13, 2019 — Christopher G. Hill - Construction Law Musings
As regular readers of Construction Law Musings are well aware, I like to discuss mechanic’s liens. Whether it is their picky nature, the way court’s treat them or the soon to take effect changes in the form, mechanic’s liens are a topic near and dear to my heart as a construction attorney. This past month the Fairfax Circuit Court took on the intersection of mechanic’s lien priority under Virginia Code section 43-21 (the lien priority statute) and what constitute necessary parties that must be named in any enforcement suit. In Marines Plumbing, LLC v. Durbin, et al., the Court discussed an all too typical scenario. Marines Plumbing performed repair work on the defendants’ property and the defendants did not pay for the work. Marines Plumbing recorded a memorandum of lien and subsequently sued to enforce that lien. In filing its suit, Marines Plumbing failed to name the trustees and lender on a deed of trust securing the loan on the property. Needless to say, the Defendants moved to dismiss the action for failure to name necessary parties (lender and trustees). 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

Burden Supporting Termination for Default

January 11, 2021 — David Adelstein - Florida Construction Legal Updates
Terminating a contractor for default is a “‘drastic sanction’ and ‘should be imposed (or sustained) only for good grounds and on solid evidence.’” Cherokee General Corp. v. U.S., 150 Fed.Cl. 270, 278 (Fed.Cl. 2020) (citation omitted). This is true with any termination for default because terminating a contract for default is the harshest recourse that can be taken under a contract. It is a caused-based termination. For this reason, the party terminating a contract for default needs to be in a position to carry its burden supporting the evidentiary basis in exercising the default-based (or caused-based) termination. Stated differently, the party terminating a contract for default needs to justify the reasonableness in terminating the contract for default. A party looking to terminate a contract for default should smartly work with counsel to best position its justification in exercising the termination for default. Likewise, a contractor terminated for default should immediately work with counsel to best position the unreasonableness or the lack of justification for the default-based termination. 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

Diggin’ Ain’t Easy: Remember to Give Notice Before You Excavate in California

February 15, 2018 — Matthew Peng – Construction Law Blog
If you are reading this blog, my guess is that you know what excavation is and why it is important to the construction process. However, what you may not know is the complicated California law that governs this process. The statute for an excavation contractor to be familiar with is California Government Code section 4216, et seq. However, like most things worth pursuing, that is easier said than done. Section 4216 contains several layers of prerequisites and requirements. This article will explore the notice requirement. Section 4216.1 requires “every operator of a subsurface installation” to share costs of a regional notification center. This is necessary because Section 4216.2(b) requires “an excavator planning to conduct an excavation shall notify the appropriate regional notification center of the excavator’s intent to excavate” before beginning that excavation. The statute lists two regional notification centers: the Underground Service Alert—Northern California and the Under Ground Service Alert—Southern California. Read the court decision
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Reprinted courtesy of Matthew Peng, Gordon & Rees
Mr. Peng may be contacted at mpeng@grsm.com

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