CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Why’d You Have To Say That?

October 09, 2023 — Daniel Lund III - Lexology
A surety seeking collateral from indemnitors filed suit in federal court in Louisiana pursuant to a forum selection clause in the indemnity agreement between the parties. The indemnitors were being called upon to provide collateral as a result of defaults on two Louisiana Department of Transportation projects. Seeking to move the dispute to Louisiana state court from federal court, the indemnitors filed a forum non conveniens motion. Among the arguments of the indemnitors removing the case out of federal court was the doctrine of “direct-benefits” estoppel – a policy which “‘holds a non-signatory to a clause in a contract if it “knowingly exploits the agreement” containing the clause.’ In re Lloyd's Reg. N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015) (quoting Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347, 361-62 (5th Cir. 2003)).” 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

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Graham & Who May Trigger The Need To Protest

December 23, 2023 — Hugo Fraga - Ahlers Cressman & Sleight PLLC
On May 30, 2023, the Washington Court of Appeals, Division I, issued a decision that appears to expand a contractor’s obligation with respect to WSDOT notice and claim procedures. In Graham Contracting, Ltd. v. City of Federal Way, No. 83494-1-I, 2023 WL 3721171 (Wash. Ct. App. May 30, 2023) (Unpublished), the Court held that under the 2016 WSDOT Standard Specifications for Road, Bridge, and Municipal Construction (“Standard Specifications”), a Contractor must protest the actions of not only the “Engineer” but also the actions of any person or organization acting on behalf of the Owner. This case arises out of a public construction contract in which Graham Contracting Ltd (“Graham”) built a multi-million dollar roadway improvement for the City of Federal Way along a stretch of Pacific Highway. The appeal was from the trial court’s granting of the City’s motion for summary judgment to dismiss claims by Graham for extra time and money due to delays and impacts to Graham’s construction of the Project. Read the court decision
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Reprinted courtesy of Hugo Fraga, Ahlers Cressman & Sleight PLLC
Mr. Fraga may be contacted at hugo.fraga@acslawyers.com

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The Shifting Sands of Alternative Dispute Resolution

February 03, 2020 — Tim Scully - Porter Law Group
In California there are few tools which work to protect the employer, and California employers may have just lost another one. On October 10, 2019, Governor Gavin Newson signed into law AB 51, which bans the use of mandatory arbitration agreements in employment contracts. More specifically, AB 51 adds Section 432.6 to the California Labor Code, making it unlawful to require a prospective employee, or current employee, to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (“FEHA”)(Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code) or the California Labor Code, starting January 1, 2020. Additionally, an employer is also prohibited from threatening, retaliating or discriminating against, or terminating any applicant or employee who may choose not to sign a voluntary arbitration agreement. Previously, an employer was able to require employees and prospective employees to agree to arbitration to resolve almost any and all disputes between the employee and the employer as a term of their employment. These terms were often the bulk of employers’ written contracts. Employers could have employees waive the right to a jury trial, the right to court costs, and other expenses, provided that the employer paid for the expenses of the alternative dispute resolution. The injured employees right to recover attorney’s fees was always a non-waivable right under the Labor Code. There were only a few actions which could not be arbitrated, the most prominent exception being the right to seek recovery under the Private Attorney’s General Action (PAGA). Read the court decision
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Reprinted courtesy of Tim Scully, Porter Law Group
Mr. Scully may be contacted at tscully@porterlaw.com

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MSJ Granted Equates to a Huge Victory for BWB&O & City of Murrieta Fire Department!

May 30, 2022 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
BWB&O Partner Tyler D. Offenhauser and Senior Associate Kevin B. Wheeler prevailed on their Motion for Summary Judgment (“MSJ”) on behalf of a public entity, the City of Murrieta Fire Department today! As a matter of background, authorities were first called to a residence in Murrieta after a report of a gas line rupture. Firefighters and Southern California Gas Company responded to the call. As a crew from SoCalGas was trying to shut off the gas an explosion happened, leveling the home and killing 31-year-old SoCalGas employee Wade Kilpatrick. 30 surrounding homeowners have now alleged personal injuries, including TBI, as a result of the explosion. News agencies reported that Plaintiff Anthony Borel sustained a severe head injury and was placed in a coma. Plaintiff’s injuries included an epidural hematoma, subarachnoid hemorrhage, bilateral corneal abrasions, right orbital fracture, right temporal fracture, right maxillary fracture, frontal skull fracture, 18% partial-thickness burns to the face, abdomen, arms and legs, and a severe TBI with cognitive deficiencies. Plaintiff claimed damages in excess of $20,000,000.00. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Good-To-Know Points Regarding (I) Miller Act Payment Bonds And (Ii) Payment Bond Surety Compelling Arbitration

December 22, 2019 — David Adelstein - Florida Construction Legal Updates
Every now and then I come across an opinion that addresses good-to-know legal issues as a corollary of strategic litigation decisions that are questionable and/or creative. An opinion out of the United States District Court of New Mexico, Rock Roofing, LLC v. Travelers Casualty and Surety Company of America, 2019 WL 4418918 (D. New Mexico 2019), is such an opinion. In Rock Roofing, an owner hired a contractor to construct apartments. The contractor furnished a payment bond. The contractor, in the performance of its work, hired a roofing subcontractor. A dispute arose under the subcontract and the roofer recorded a construction lien against the project. The contractor, per New Mexico law, obtained a bond to release the roofer’s construction lien from the project (real property). The roofer then filed a lawsuit in federal court against the payment bond surety claiming it is entitled to: (1) collect on the contractor’s Miller Act payment bond (?!?) and (2) foreclose its construction lien against the lien release bond furnished per New Mexico law. Count I – Miller Act Payment Bond Claiming the payment bond issued by the contractor is a Miller Act payment bond is a head scratcher. This claim was dismissed with prejudice upon the surety’s motion to dismiss. This was an easy call. 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

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Improvements to AIA Contracts?

February 05, 2015 — Craig Martin – Construction Contractor Advisor
Joel Sciascia, general counsel for the construction management company Pavarini McGovern, made some insightful comments in the Viewpoint section of the latest Engineering News Record magazine. He argues that architects should not be the initial decision maker (“IDM”) under AIA contracts. Instead of using the architect, Mr. Sciascia suggests the use of an independent dispute-resolution board. In 2007, the AIA introduced a new concept into the A-201 documents through which the owner and contractor had the option of naming an independent third party to resolve disputes, instead of automatically allowing the architect to resolve disputes. But, if the parties did not select any specific independent decision maker, the architect would be considered the default initial decision maker. 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

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Future Environmental Rulemaking Proceedings Listed in the Spring 2019 Unified Federal Agenda

July 15, 2019 — Anthony B. Cavender - Gravel2Gavel
The latest federal regulatory agenda has been released, which, among other matters, lists proposed and projected environmental regulatory proceedings being considered by different departments and agencies. Here are some selected items. EPA 1. The Water Office

• EPA plans to issue in December 2019 a Notice of Proposed Rulemaking (NPRM) to consider making a regulatory determination as a prelude to listing as drinking water contaminants PFOA and PFOS pursuant to the Safe Drinking Water Act.
• EPA (along with the Corps of Engineers) plans to issue an NPRM in December 2019 that will propose to revise and update its 2008 mitigation banks and in-lieu fee programs, with a final rule scheduled for September 2020.
• An NPRM to revise the 2015 effluent limitations guidelines and standards for the Steam Electric Power Generating Point Source Category will be released in June 2019.
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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The Hazards of Carrier-Specific Manuscript Language: Ohio Casualty's Off-Premises Property Damage and Contractors' E&O Endorsements

October 05, 2020 — Theresa A. Guertin & Eric M. Clarkson - Saxe Doernberger & Vita
Risk transfer in the construction industry depends heavily on industry-standard insurance language. Insurance provisions in subcontracts typically reference ISO standard insurance terminology or endorsements in order to guarantee (or, at least, attempt to secure) coverage for upstream parties. The contract may require, for example, that a subcontractor maintains general liability insurance on a “current ISO occurrence form,” and name upstream parties as additional insureds, and both parties will have a general understanding of what that entails for purposes of risk transfer. Problems arise, however, when insurance companies stray from standard language, especially on issues that go to the heart of construction risk transfer. In some instances, provisions that track ISO language may contain subtle changes that seem to meet the contractual insurance requirements. Upon closer scrutiny, it could significantly change how a policy will respond to a given claim. Given the extent of potential liability arising from construction projects, if the insurance programs intended to back up risk transfer and indemnity agreements do not respond as expected, all the potentially liable parties may be left in the lurch. Reprinted courtesy of Theresa A. Guertin, Saxe Doernberger & Vita and Eric M. Clarkson, Saxe Doernberger & Vita Ms. Guertin may be contacted at tag@sdvlaw.com Mr. Clarkson may be contacted at emc@sdvlaw.com Read the court decision
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