CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Nevada Court Adopts Efficient Proximate Cause Doctrine

February 10, 2012 — Tred R. Eyerly - Insurance Law Hawaii

Although the Nevada Supreme Court adopted the efficient proximate cause doctrine, it determined it did not apply to salvage coverage under an all-risk policy for a rain-damaged building. Fourth Street Place, LLC v. The Travelers Indemn. Co., 2011 Nev LEXIS 114 (Nev. Dec. 29, 2011).



Fourth Street owned an office building which was insured by an all-risk policy issued by Travelers. Fourth Street hired Above It All Roofing to repair the roof of the office building. Above It All removed the waterproof membrane on the roof and prepared to replace the membrane the following week. Over the weekend, however, substantial rain hit. On Sunday, Above It All returned to cover the exposed portions of the roof with tarps, but wind later blew the tarps away. The building suffered significant interior damage as it continued to be exposed to the rain.

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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii. Mr. Eyerly can be contacted at te@hawaiilawyer.com

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MTA Debarment Update

December 02, 2019 — Steven M. Charney, Gregory H. Chertoff & Paul Monte - Peckar & Abramson, P.C.
Alliance for Fair and Equitable Contracting Today, Inc., a nonprofit formed by five trade associations, including the GCA, the BTEA and the NY Building Congress, has sued the Metropolitan Transportation Authority over rules that debar contractors for delays and cost overruns on MTA projects without regard to the reasons for the delays and cost overruns. As described in our prior client alert (see here), the current rules automatically debar firms that are determined to have gone over the MTA approved contract price or time by more than 10%. The rules do not consider mitigating circumstances. Delays and cost overruns are often caused by unforeseen conditions, design errors and omissions, and changes requested by the MTA. The MTA’s rules could lead contractors to absorb additional costs they shouldn’t be responsible for rather than face the risk of being debarred. As argued in Alliance’s action, “Debarment is the death penalty for a public works contractor, and not just in New York. A debarment by the MTA could result in debarment nationwide, given that public and private contractors throughout the country commonly inquire about bidders’ debarment history when considering project bids. The Debarment Statute and MTA Regulations thus effectively export an unreasonable law not only throughout New York State, but to all other states as well.” Reprinted courtesy of Saxe Doernberger & Vita, P.C. attorneys Steven M. Charney, Gregory H. Chertoff and Paul Monte Mr. Charney may be contacted at scharney@pecklaw.com Mr. Chertoff may be contacted at gchertoff@pecklaw.com Mr. Monte may be contacted at pmonte@pecklaw.com Read the court decision
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Insurers Get “Floored” by Court of Appeals Regarding the Presumptive Measure of Damages in Consent Judgments

May 13, 2014 — Mark Scheer and Brent Williams-Ruth – Scheer & Zehnder LLP
CASE: Miller v. Kenny, 68594-5-I, 2014 WL 1672946 (Wash. Ct. App. Apr. 28, 2014). Snapshot Synopsis: $21 million bad faith consent judgment verdict upheld. $4.15 million underlying stipulated consent judgment was the “floor,” and additional damages allowed. ISSUES: 1. Can a jury award damages for an insurer’s bad faith in excess of the amount of the stipulated covenant judgment? YES 2. Can a trial court admit evidence of insurance liability reserves in a bad faith action? YES 3. *Note: Other evidentiary and procedural issues were addressed by the court in its decision but not analyzed in this summary* FACTS: This appeal arose out of an automobile accident on August 23, 2000. Patrick Kenny was driving a 1994 Volkswagen Passat owned by one of the passengers, when he rear-ended a cement truck. The accident severely injured his three passengers: Ryan Miller, Ashley Bethards, and Cassandra Peterson. Kenny was covered for liability under the insurance policy issued to Peterson's parents by Safeco Insurance Company. Safeco defended Kenny without a reservation of rights. Reprinted courtesy of Mark Scheer, Scheer & Zehnder LLP and Brent Williams-Ruth, Scheer & Zehnder LLP Mr. Scheer may be contacted at mscheer@scheerlaw.com; Mr. Williams-Ruth may be contacted at bwilliamsruth@scheerlaw.com Read the court decision
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New Home for the Aged Suffers Construction Defects

July 31, 2013 — CDJ STAFF
Although it’s only about a year old, there are already complaints about construction defects at Lubertha Johnson Estates, a property for low-income seniors in Southern Nevada. The 112-unit project is currently the subject of a construction defect lawsuit, with residents complaining about roof leaks, defective gates, and other problems. Jane Ann Morrison, writing in the Las Vegas Review-Journal, also notes that when the director of public housing operations presented resident complaints to the board of the Southern Nevada Regional Housing Authority, a few defects seemed to have crept into their complaints, errors that weren’t in the one residents supplied to the reporter. Read the court decision
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The Pandemic, Proposed Federal Privacy Regulation and the CCPA

November 02, 2020 — Heather Whitehead - Newmeyer Dillion
The U.S. Senate Committee on Commerce, Science and Transportation met recently to discuss considerations for implementing federal privacy laws. Not surprisingly, the main impetus to reevaluate a federal framework is the ongoing COVID-19 pandemic with the greatly increased reliance on online working and school arrangements, as well as the need to share personal information for contact tracing and other efforts to weaken the pandemic. While federal regulation of personal information has been proposed in the past, there are a few key issues that still remain unresolved. One is enforcement of the regulations. The issue is whether enforcement should be handled by the Federal Trade Commission or if the establishment of a new federal authority is needed to enforce privacy requirement violations. Other key outstanding issues include pre-emption of state rights and whether any regulations should include a private right of action. Given that the California Consumer Privacy Act of 2018 (CCPA) is the most stringent state regulation addressing data privacy in the United States, California Attorney General Xavier Becerra participated as a witness in the recent Senate Hearing. He shared his opinions as to both federal pre-emption and the need for a private right of action. He recommended that the committee preclude federal regulation from pre-empting state laws, including the CCPA. He noted that individual states are in a better position to adapt and keep up with technological innovation, and that some states have also already implemented thorough privacy protections, such as Mississippi and Washington. With respect to the private right of action, he admitted his office can only do so much to enforce these regulations amongst California’s huge population of businesses and residents. His belief is that individual consumers need the ability to pursue their own remedies in court. Read the court decision
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Reprinted courtesy of Heather Whitehead, Newmeyer Dillion
Ms. Whitehead may be contacted at heather.whitehead@ndlf.com

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Recommendations and Drafting Considerations for Construction Contingency Clauses Part III

December 27, 2021 — Samantha Schacht & Josh Levy - Construction Executive
The best contracts provide the parties with a clear allocation of risks and responsibilities, and a process for handling inevitable project challenges. Contract negotiations can enable parties to have the difficult conversations allocating risks before the start of a project. An effective negotiation, in turn, aligns the parties’ expectations and helps avoid costly disputes born out of misunderstandings of the parties’ respective rights and responsibilities on the project. This final installment of a three-part series on contingencies in construction contracts addresses factors that should be discussed and considered when drafting a contingency clause in a construction contract with the goal of helping to set clear expectations and avoid disputes. Part I The Best Laid Plans: Contingency in a Construction Contract explained what a construction contingency is and Part II The Best Laid Plans: Contingency in a Construction Contract discussed the two primary schools of thought on how a construction contingency fund should be used and managed. Reprinted courtesy of Samantha Schacht, Construction Executive and Josh Levy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Ms. Schacht may be contacted at samantha.schacht@huschblackwell.com Read the court decision
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Automating Your Home? There’s an App for That

April 03, 2013 — CDJ STAFF
Writing in the New York Times, Nick Wingfield looks at both the promise and failures of home automation, starting with a timer which had “buttons the size of a small seed” and was too difficult to reset. Wingfield said the timer “made my house dumber.” He moves on to the useful items, such as the Nest thermostat, which improves on his previous programmable thermostat by being able to determine when people are actually home (so an empty house isn’t being heated) and it can be controlled from a smartphone app, useful for the taxi on the way home from the airport. The Belkin WeMo Switch allows users to control lamps from an iOS app and the timer functions can be accessed without having to use seed-sized buttons. For those with bigger home automation budgets, there are now companies setting up whole house systems, including thermostat, light controls, motion detectors, surveillance cameras, and even monitors for your hot water heater and the level of carbon monoxide in your home. These systems start at around $1,500 but quickly go past $5,000. Other packages are sold on a month-by-month basis. And they include apps. Read the court decision
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Former Mayor Arrested for Violating Stop Work Order

October 30, 2013 — CDJ STAFF
The former mayor of Springfield, Florida has been arrested on charges of insurance fraud. More than a year ago, an investigator for the Bureau of Workers’ Compensation found that an employee of Walker’s construction company was working without workers’ compensation and issued a stop work order. Walker’s employees continued work. The charges were delayed because Walker challenged the stop work order. Once it was determined that the stop work order was issued properly, Walker was charged with a third-degree felony. Read the court decision
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