CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

July 1, 2015 Statutory Changes Affecting Virginia Contractors and Subcontractors

June 10, 2015 — Christopher G. Hill – Construction Law Musings
As always seems to be the case, this year, as in others, the Virginia General Assembly has seen fit to “tweak” a few construction related statutes. All of these changes will go into effect on July 1, 2015. The big one, and one that I posted about a while back is the change to the Virginia mechanic’s lien statute to prohibit contractual waiver of lien, payment bond or claims for additional costs prior to the furnishing of labor or materials. This one is big because it relieves a bit of the angst in the pre-contract negotiations between subcontractors and general contractors. Another significant change, this one to the wording of Virginia Code 2.2-4309, found in House Bill 1628, clarifies the fact that this Virginia statute does not limit the amount a government contractor may claim or recover against a public body under a contract dispute. This is a big one considering the ruling in the Carnell Construction Corp. v. Danville Redevelopment Housing Authority LLC limiting such claims. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Congress Relaxes Several PPP Loan Requirements

June 15, 2020 — Greg Tross & Michael Krueger – Newmeyer Dillion
On June 3, 2020, Congress passed the Paycheck Protection Program Flexibility Act ("Act") which does exactly what it means to do: provide flexibility for PPP loan recipients. President Trump is expected to sign the bill into law within the week. The Act extends the "covered period" for Paycheck Protection Program ("PPP") loans from the original eight weeks to 24 weeks or December 31, 2020, whichever is earlier. This extension provides much needed reprieve to small businesses who can utilize these funds to weather the economic effects of the Coronavirus Pandemic through 2020. The Act also revises the limitations on how small businesses utilize their PPP loans. While the CARES Act originally required 75% of the PPP loan to be used for payroll costs, this number has now been reduced to 60%. This means that up to 40% of the PPP loan can be used to cover mortgage obligations, rent, and other covered utility payments. The PPP loan payment deferral period has also been extended to align with the date on which the PPP loan's forgiveness amount is remitted to the lender. This should provide more certainty to small businesses on their payback obligations, if any. Recently, the Small Business Administration also released loan forgiveness applications to assist a business in calculating their loan forgiveness. While the SBA will likely revise it with the Act's passing, small businesses should look at the application's framework to prepare for submitting their loan forgiveness requests in the future. Newmeyer Dillion continues to follow COVID-19 and its impact on your business and our communities. Feel free to reach out to us at NDcovid19response@ndlf.com or visit us at www.newmeyerdillion.com/covid-19-multidisciplinary-task-force/. Reprinted courtesy of Greg Tross, Newmeyer Dillion and Michael Krueger, Newmeyer Dillion Mr. Tross may be contacted at greg.tross@ndlf.com Mr. Krueger may be contacted at michael.krueger@ndlf.com Read the court decision
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Harmon Tower Construction Defects Update: Who’s To Blame?

August 17, 2011 — CDJ STAFF

Reporting on the site VegasInc.com, Liz Benton notes that “nobody wants to take the fall for what happened at Harmon.” Work on the Harmon hotel building in Las Vegas’s CityCenter stopped in 2008 after 26 of the planned 49 stories were completed. Lorence Slutzky, a construction law professor at John Marshall Law School and a partner with the Chicago firm Robbins Schwartz Nicholas Lifton & Taylor told Benton that while inspectors and others are complicit, “the real responsibility rests with Perini, which has an obligation to comply with the plan specifications.” Perini’s claim is that they were given faulty design drawings. MGM disputes this.



Perini has offered to repair the building defects, however MGM has released a statement that they have “zero confidence or trust that Perini can and will properly fix a building it has so badly constructed thus far.” One MGM spokesperson likened these requests from Perini to “the director of ‘Ishar’ demanding a sequel.” “Ishtar,’ cost Columbia Pictures $55 million dollars and earned only $4.2 million in its initial run. Perini claims that MGM halted work because of the economy.

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U.S. Army Corps Announces Regulatory Program “Modernization” Plan

August 03, 2022 — Karen Bennett - Lewis Brisbois
Washington D.C. (June 17, 2022) - The U.S. Army Corps of Engineers and the Department of the Army recently announced plans to amend the Corps Civil Works program to better serve Indian nations and other disadvantaged and underserved communities. 87 Fed. Reg. 33758 (June 3, 2022). Comments are due by August 2, 2022. Several items warrant attention. The first are changes to Corps regulations on implementation of the National Historic Preservation Act (NHPA, or the Act) (33 CFR 325, Appendix C). Proposed options include suspension of the Corps’ Appendix C regulations and adoption of the Advisory Council on Historic Preservation’s (ACHP) regulations. Congress established the ACHP, an independent agency whose mission is to provide the President and Congress with advice as to policies and programs on historical preservation. The NHPA authorized the Council to promulgate regulations establishing procedures for evaluating the effect of a federal action on historic property. The Act also provides that a federal agency may promulgate its own regulations, consistent with the Council’s regulations. Where an agency has its own regulations, courts have consistently held that the agency’s regulations govern decision-making, provided they are not inconsistent with the Part 800 regulations. Most courts have generally regarded an agency’s regulations as inconsistent when they are less restrictive procedurally than the Council’s. Until today, the Corps has defended Appendix C and interim guidance (issued in 2005 and 2007) as consistent with the NHPA and specifically tailored for use in the Corps regulatory program. The announcement marks a significant directional change and gives the ACHP a larger role in Corps regulatory decisions. Read the court decision
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Reprinted courtesy of Karen Bennett, Lewis Brisbois
Ms. Bennett may be contacted at Karen.Bennett@lewisbrisbois.com

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California Supreme Court Finds that the Notice-Prejudice Rule Applicable to Insurance is a Fundamental Public Policy of the State

October 14, 2019 — Christopher Kendrick & Valerie A. Moore – Haight Brown & Bonesteel LLP
In Pitzer College v. Indian Harbor Ins. Co. (No. S239510, filed 8/29/19), the California Supreme Court held that California’s notice-prejudice rule is a fundamental public policy in the insurance context, supporting the application of California law under a choice of laws analysis. In addition, the Court held that the rule generally applies to consent (aka “no voluntary payments”) provisions in first party insurance policies but not to consent provisions in third party liability policies. Pitzer College discovered soils contamination while building a new dormitory. Under pressure to complete construction before the start of the school year, Pitzer proceeded to remediate the soils, incurring $2 million in expense. Pitzer submitted a claim to Indian Harbor, which provided Pitzer insurance covering legal and remediation expenses resulting from pollution conditions discovered during the policy period. The policy contained a notice provision requiring Pitzer to provide oral or written notice of any pollution condition to Indian Harbor and, in the event of oral notice, to “furnish … a written report as soon as practicable.” In addition, a consent provision required Pitzer to obtain Indian Harbor’s written consent before incurring expenses, making payments, assuming obligations, and/or commencing remediation due to a pollution condition. The consent provision had an emergency exception for costs incurred “on an emergency basis where any delay … would cause injury to persons or damage to property or increase significantly the cost of responding to any [pollution condition],” in which case Pitzer was required to notify Indian Harbor “immediately thereafter.” Lastly, a choice of law provision stated that New York law governed all matters arising under the policy. Reprinted courtesy of Christopher Kendrick, Haight Brown & Bonesteel LLP and Valerie A. Moore, Haight Brown & Bonesteel LLP Mr. Kendrick may be contacted at ckendrick@hbblaw.com Ms. Moore may be contacted at vmoore@hbblaw.com Read the court decision
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Insurance Company Prevails in “Chinese Drywall” Case

June 17, 2011 — CDJ STAFF

The Louisiana Court of Appeals rejected an appeal to reverse a summary judgment granted to Louisiana Citizens Property Insurance Company. Terrence and Rhonda Ross contracted for a remodel of their home in which Chinese-made drywall was used. When the drywall emitted harmful gasses, the Rosses filed a claim under their insurance policy. This claim was rejected under four exclusions: for faulty materials, latent defect, loss by corrosion, and loss by pollution. After the claim was denied, the Rosses sued Louisiana Citizens.

In April 2010, the lower court granted a summary judgment, followed by a May, 2010 order dismissing the Rosses’ claims against Louisiana Citizens. The Rosses appealed this decision. In the court’s review, they agreed with Louisiana Citizens and the lower court on all counts. Although the Rosses maintained that the drywall was not defective (as it still functioned as drywall), the court ruled that its emission of sulfuric gases was a defect. Further, as it was in place for two years before this became evident, it was also a latent defect. Damage to the Rosses’ home consisted of corrosion damage caused by the pollutants in the drywall.

The Rosses made an additional claim that since their policy covered smoke damage, this should be covered, as the harm was done by sulfuric gases. The court noted that the contract specifies “fumes or vapors from a boiler, furnace, or related equipment,” none of which apply in this case.

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Construction Costs Up

February 21, 2013 — CDJ STAFF
The cost of putting a building up just got a little higher. The General Contractors of America have tracked an 0.7 percent increase in the cost of building materials between December and January, leading to a 1.3 percent increase through 2012. Ken Simonson, the organization’s chief economist, said that “contractors had to contend with huge leaps in prices for gypsum, wallboard and lumber, as well as significant increases in the cost of insulation and architectural coatings such as paint.” And it isn’t just building materials. Simonson notes that diesel prices are up too, which increases the costs of moving heavy machinery across the site, among other considerations. Don’t expect things to change. “It is clear that costs are rising significantly higher in February,” said Simonson. Read the court decision
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Pensacola Bridge Halted Due to Alleged Construction Defects

July 21, 2018 — David Suggs – Bert L. Howe & Associates, Inc.
The Pensacola News Journal reported that cracks were discovered again in the Pensacola Bay Bridge, which caused construction of said bridge to be halted once more: “Cracks found in a portion of the concrete in the Pensacola Bay Bridge project have twice halted construction in the last several months, raising concerns about oversight and disclosure from the state, particularly in light of the Miami bridge collapse earlier this year.” The Florida Department of Transportation stated “that the cracks were found during a routine visual inspection of newly placed concrete in March,” according to the Pensacola News Journal. The $400 million project began in 2017 and was scheduled to be completed by 2020. Read the court decision
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