Cambridge Massachusetts Building Expert Directory

Liability Coverage For Construction Claims May Turn On Narrow Factual Distinctions

March 25, 2024 — Scott S. Thomas - Payne & Fears
In a recent trial court decision, a Montana federal court reminds us how fragile insurance coverage can be for construction-related insurance claims. Specifically, this case illustrates how seemingly small factual nuances can make or break coverage. The case turned on the application of policy provisions familiar to all who deal with these kinds of cases. (See Nautilus Ins. Co. v. Farrens, No. CV 22-193-M-DWM, 2024 WL 885109 (D. Mont. Mar. 1, 2024)) First, the court rebuffed the insurer’s argument that damage resulting from defective workmanship (in this case, the flawed design and installation of an elaborate floating-floor pool system) is not “caused by an occurrence.” The court correctly applied the test followed by most states: if either act causing injury is unintentional or the resulting injury is unexpected or unintended, the “occurrence” requirement is met. Fortunately, the court distinguished sloppy language from earlier Montana federal court decisions suggesting otherwise. Read the court decision
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Reprinted courtesy of Scott S. Thomas, Payne & Fears
Mr. Thomas may be contacted at sst@paynefears.com

Five Facts About Housing That Will Make People In New York City and San Francisco Depressed

February 26, 2015 — Flavia Krause-Jackson and Alexandre Tanzi – Bloomberg
If you live in New York or San Francisco, you should spend some time mining the latest crop of home price data -- starting with the Standard & Poor’s Case-Shiller indices. Then, pull out your last rent check. It might be enough to make you move. Here are a few things to get you thinking: 1. What you pay for parking in New York can buy a cheap home in Chicago The cheapest tier of homes in the Windy City were valued at less than $170,368 in November, the Case-Shiller tiered-price indices show (there are three tiers: low, middle and high). That compares to the $136,052 average price tag for parking space in New York last year, according to Jonathan J. Miller, the president of the appraisal firm Miller Samuel and a Bloomberg View contributor. Reprinted courtesy of Flavia Krause-Jackson, Bloomberg and Alexandre Tanzi, Bloomberg Read the court decision
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Reminder: Always Order a Title Search for Your Mechanic’s Lien

June 02, 2016 — Christopher G. Hill – Construction Law Musings
Mechanic’s liens are close to my heart as a construction attorney. These powerful tools for collection have been (and likely will be) discussed often here at Construction Law Musings. In fact, they rated their own page here at this little construction blog. While the form for a mechanic’s lien that is found in the Virginia Code looks simple enough, what goes into that form is key to getting past the initial stage of the mere recording of the lien and moving on to where a lien claimant wishes to go: Payment. Everything from the proper amount of the lien to the timing of filing, the parties named, type of work performed and who signs the lien can trip you up even before you get a chance to have a judge examine your payment claim. In short, this simple form has many pitfalls. On final item that is not often discussed is the description of the property and who the owner is on a project. A mistake on either of these fronts can be fatal as well. Often the “Owner” listed on the construction documents (the contracts, etc.) is not the same as the owner of the real estate to which your lien would attach. Sometimes a company may hire the general contractor as owner and either be a tenant of the property or could be the operating entity, but not the land holder. In either of these scenarios, merely naming the contract “owner” can be a mistake that could cost you your lien. The owner for lien purposes must be the land owner or there will be a problem. 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

Important Insurance Alert for Out-of-State Contractors Assisting in Florida Recovery Efforts!

November 01, 2022 — Richard W. Brown & Stephanie A. Giagnorio - Saxe Doernberger & Vita
Significant portions of Florida suffered extensive damage from Hurricane Ian. Many out-of-state contractors have sent their workers to Florida to help with the cleanup and rebuilding process. SDV is sending out this important notice for all out-of-state contractors to contact their workers’ compensation brokers and insurers to ensure their out-of-state workers’ compensation policy will cover workers in Florida. The state of Florida does not recognize the “All States Endorsement” on workers’ compensation policies, and in some instances could potentially result in out-of-state contractors being without coverage in the State of Florida. As per the Florida Division of Workers’ Compensation: “Out of State Employers must notify their insurance carrier that they are working in Florida. If there is no insurance, the out-of-state employer is required to obtain a Florida Workers’ Compensation Insurance policy with a Florida approved insurance carrier which meets the requirements of Florida law and the Florida Insurance Code. This means that ‘Florida’ must be specifically listed in Section 3A of the policy (on the Information Page).” Reprinted courtesy of Richard W. Brown, Saxe Doernberger & Vita and Stephanie A. Giagnorio, Saxe Doernberger & Vita Mr. Brown may be contacted at RBrown@sdvlaw.com Ms. Giagnorio may be contacted at SGiagnorio@sdvlaw.com Read the court decision
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Comply with your Insurance Policy's Conditions Precedent (Post-Loss Obligations)

May 31, 2021 — David Adelstein - Florida Construction Legal Updates
I am of the opinion that if your property insurer requests a sworn proof of loss, furnish one with the assistance of counsel (preferably). Ignoring the insurer’s request or refusing to comply with insurer’s request is NOT value-added; it is simply placing you at a disadvantage based on the insurer’s argument that you, as the insured, materially breached the policy. I generally find no value having to confront this expected argument. Instead, I find value making an effort to comply with post-loss obligations including the insurer’s request to submit a sworn proof of loss. Working with counsel can help you comply with post-loss obligations (conditions precedent) while not weakening the value or merits of your claim. By way of example, in Edwards v. Safepoint Ins. Co., 46 Fla. L. Weekly D1086a (Fla. 4th DCA 2021), the insured did not provide its property insurer with the requested sworn proof of loss. The insurer moved for summary judgment that the insured’s failure to submit the sworn proof of loss was a material breach of the policy that rendered the policy ineffective. The trial court agreed and granted summary judgment. The Fourth District Court of Appeal affirmed explaining “[a] total failure to comply with policy provisions made a prerequisite to suit under the policy may constitute a breach precluding recovery from the insurer as a matter of law. If, however, the insured cooperates to some degree or provides an explanation for its noncompliance, a fact question is presented for resolution by a jury.” Edwards, supra, quoting Haiman v. Federal Ins. Co., 798 So.2d 811, 812 (Fla. 4th DCA 2001). 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

Transition Study a Condo Board’s First Defense against Construction Defects

December 04, 2013 — CDJ STAFF
According to the advice provided by T. Allen Mott and Nicholas D. Cowie, condominium boards would be well advised to “hire an engineer or architect to perform a transition study,” since it would be preferable to repair any problems while warranties are still in effect. They also caution that the board must “determine whether the developer-created budget and reserve fund are adequate to cover the cost of maintaining the condominium’s construction over time.” They note that discovered in time, some problems are easy to fix, but left unrepaired, they can result in “extensive, hidden property damage requiring associations to borrow money and assess unit owners to cover the entire cost of repairing the developer’s construction defects and resulting property damage. The goal, as they point out, is “an amicable repair resolution.” Read the court decision
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Pentagon Has Big Budget for Construction in Colorado

January 17, 2013 — CDJ STAFF
The Pentagon is an important source of construction contracts, and one place where they’re acutely aware of this in Colorado Springs, Colorado. Luckily for the town’s economy, the military awarded $400 million in construction contracts to Colorado, many of them in the town of Colorado Springs. Projects in Colorado Springs include facilities for a helicopter unit at Fort Carson and renovations at the Air Force Academy. The new operation center for defense intelligence at Buckley Air Force Base will be built in nearby Aurora. The price tag on the operations center is $117 million. Meanwhile, the military has thousands of both civilian and military employees who will be using these facilities. Read the court decision
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Strategy for Enforcement of Dispute Resolution Rights

May 30, 2018 — Whitney Judson - Smith Currie
Arbitration and litigation each offer their own benefits and drawbacks to litigants looking to resolve a construction dispute. A careful analysis of these benefits and drawbacks may be helpful in determining whether to avoid or pursue either dispute resolution process. Arbitration is oftentimes regarded as the more economically feasible dispute resolution option and is therefore attractive to many construction dispute litigants. Although arbitration may prove to be less expensive than litigation in the long run, some litigants may prefer to file a case in court because the upfront filing fees in litigation are less expensive than the filing fees of arbitration. Litigants may also prefer the decision makers of one process for dispute resolution over another. Arbitrators in a construction dispute oftentimes have a background in the construction industry, whereas a judge or jury may not. Strategy may dictate whether the preferable decision maker should have experience within the construction industry or be free of any construction industry knowledge and possible biases. The finality of decisions may also be a reason to strategically choose one dispute resolution process over another. Arbitration decisions are overturned only under very narrow and specific circumstances. The losing party in litigation however, has a right to appeal decisions to a higher court and has more options for recourse when the findings of the court are not supported by the evidence or the law. Read the court decision
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Reprinted courtesy of Whitney Judson, Smith Currie
Ms. Judson may be contacted at wtjudson@smithcurrie.com

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