Cambridge Massachusetts Building Expert Directory

Disputes Over Arbitrator Qualifications: The Northern District of California Offers Some Guidance

August 10, 2021 — Justin K. Fortescue - White and Williams
The selection of an arbitration panel can often lead to disputes between the parties regarding things like whether a particular candidate is qualified, whether a challenge to an arbitrator’s qualifications can be addressed pre-award and whether a party that names an unqualified arbitrator should lose the opportunity to name a replacement. In Public Risk Innovations v. Amtrust Financial Services, No. 21-cv-03573, 2021 U.S. Dist. LEXIS 129464 (N.D. Ca. July 12, 2021), the court provided answers on all three of these issues. In Amtrust, the parties filed cross-motions to compel arbitration. Although both parties agreed the dispute was arbitrable, they disagreed about whether Public Risk Innovations, Solutions and Management’s (PRISM) arbitrator was qualified under the terms of the applicable contract. In seeking to have PRISM’s arbitrator disqualified, Amtrust argued that he: (1) was not a “current or former official of an insurance or reinsurance company”; and (2) was not “disinterested.” Amtrust also argued that because PRISM named an unqualified arbitrator (and presumably the time to appoint had passed), PRISM should be deemed to have failed to select an arbitrator as required by the contract and that Amtrust had the right to select a second arbitrator of its choice. Read the court decision
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Reprinted courtesy of Justin K. Fortescue, White and Williams
Mr. Fortescue may be contacted at fortescuej@whiteandwilliams.com

St. Petersburg Florida’s Tallest Condo Tower Allegedly Riddled with Construction Defects

October 15, 2014 — Beverley BevenFlorez-CDJ STAFF
In a new lawsuit, the Signature Place Condominium Association claims "it is spending ‘large sums' of money to repair problems ranging from cracks in exterior walls to improper fire wall installation to excessive noise from air-conditioning and heating systems,” according to the Tampa Bay Times. The lawsuit also stated that “some of the alleged defects were hidden by building components and finishes and thus were not discovered by owners "until after the purchase and occupancy of the unit,” reported the Tampa Bay Times. The association “seeks damages in excess of $15,000, cites more than 100 other alleged construction and design defects.” Read the court decision
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Economic Loss Not Property Damage

November 04, 2019 — Tred R. Eyerly - Insurance Law Hawaii
The Fifth Circuit agreed with the district court that the insured subcontractor's economic losses did not amount to covered property damage. Greenwich Ins. Co. v. Capsco Industries, Inc., 2019 U.S. App. LEXIS 23949 (5th Cir. Aug 12, 2019). Capsco Industries, Inc. was a subcontractor on the construction of a casino. Capsco subcontracted with Ground Control to install water, sewage, and storm-drain lines. Ground Control was terminated from the project by the general contractor for alleged safety violations and failed drug tests of its employees. Ground Control sued in state court against multiple parties, including Capsco, seeking payment for work on the project. The claims were dismissed on summary judgment because neither party had obtained the required certificates of responsibility from the state, making the parties' contract void. The Mississippi Supreme Court agreed the contract was void, but reversed and remanded for further proceedings based solely on theories of unjust enrichment and quantum meruit. While the state case was on remand, Capsco's liability insurers, Greenwich Insurance Company and Indian Harbor Insurance Company, filed a compliant for declaratory judgment in federal district court seeking a declaration that they did not owe a defense or indemnity to Capsco. The defendants were Ground Control, Capsco, the general contractor, and the casino owner. The latter two parties were dismissed. Ground Control counterclaimed for coverage of its claims against Capsco. The district court stayed proceedings until the state court litigation ended. 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

The Colorado Construction Defect Reform Act Explained

December 11, 2013 — CDJ STAFF
Colorado passed its Construction Action Defect Reform Act twelve years ago, but as Anne K. McMichael of Zupkus & Angell, PC, points out, “while portions of this act are reasonably straightforward, several of the sections are subject to ongoing debate as to how these concepts should be applied to achieve fair and unbiased results.” The process for a construction defect claim under the CDARA starts with filing a notice of defects, after which the construction professional is permitted to inspect the alleged defect. The construction professional can then offer to repair or settle. The law offers protections for construction professionals who follow through with the process. But, as Ms. McMichael notes, these are denied to construction professionals who do not make offers, fail to meet settlement agreements, or offers a settlement that is insufficient for repairs. Read the court decision
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CAPSA Changes Now in Effect

November 14, 2018 — Wally Zimolong - Supplemental Conditions
Back in June, I posted about changes coming to the Pennsylvania Contractor and Subcontractor Payment Act (CAPSA), 73 P.S. Section 501, et. seq. The Act applies to virtually all private construction projects in Pennsylvania. As of last week (Oct. 10), those changes are effective. While there is some argument to the contrary, these changes are NOT retroactive and apply to all projects going forward from that date. To recap, here are some of the important changes you need to be aware of:

Contractual waivers. Parties cannot waive the applicability of the act through contract. Therefore, any clause in a contract purporting to waive the Payment Act’s applicability is void.
Suspension of work. Unpaid contractors and subcontractors have always enjoyed a common law right to suspend performance until payment was made. Now, they also have a statutory right to do so. Section 5 of the Payment Act ads a subpart (e) which states that an unpaid contractor or subcontractor can suspend performance without penalty if it is not paid.

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Reprinted courtesy of Wally Zimolong, Zimolong LLC
Mr. Zimolong may be contacted at wally@zimolonglaw.com

Insurance Tips for Contractors

December 08, 2016 — Patrick McNamara - Porter Law Group
Many contractors contentedly accept the insurance policies presented to them by their insurance carriers. However, it is a much better practice to be an active participant in choosing the most appropriate coverage for your business and the specific jobs that you are performing. Use the following tips to be sure your company has the best and most comprehensive coverage.

Never purchase a Commercial General Liability (“CGL”) policy with a “sunset” provision limiting coverage under Products & Completed Operations liability (P&CO) to a 2, 3 or 4-year term. Why? Because the California statute of limitations for construction defect claims is generally 10 years.
Never consider a “Claims-made” or “Modified Occurrence” coverage form which also have a built-in limitation as to the length or term of P&CO coverage. Example: If you purchase a claims-made policy and decide to “switch” your insurance to the preferred “occurrence” coverage form, unless a special provision is made prior to the new purchase, the claims-made coverage would become worthless after the sixty (60) day claims-reporting period.

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Reprinted courtesy of Patrick McNamara, Porter Law Group
Mr. McNamara may be contacted at pmcnamara@porterlaw.com

Pennsylvania “occurrence”

December 30, 2013 — Scott Patterson — CDCoverage
In Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2013 WL 6237312 (Pa. Super. 2013), insured Indalex was sued in multiple underlying actions, filed in states other than Pennsylvania, alleging that Indalex defectively designed or manufactured windows and doors resulting in leaks causing damage beyond the Indalex product, including mold, wall cracks, and personal injuries. The complaints included strict liability, negligence, breach of warranty, and breach of contract causes of action. After Indalex’s primary CGL policies exhausted, Indalex filed a declaratory judgment action against its umbrella insurer National Union. Read the court decision
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Reprinted courtesy of Scott Patterson
Scott Patterson can be contacted at cdcoverage.com

Oregon agreement to procure insurance, anti-indemnity statute, and self-insured retention

March 05, 2011 — CDCoverage.com

In Continental Casualty Ins. Co. v. Zurich American Ins. Co., No. 09-35484 (9th Cir. Oct. 28, 2010), general contractor TCR was sued by an employee of subcontractor Safeway for bodily injuries suffered while working on the project. In the subcontract, Safeway agreed to procure primary insurance providing coverage for TCR for liability arising out of Safeway’s negligence. Safeway’s CGL policy included a self-insured retention that had to be satisfied before the insurer had a duty to defend. TCR filed suit against Safeway alleging that

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Reprinted courtesy of CDCoverage.com

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CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES