CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Government Claims Act Does Not Apply to Actions Solely Seeking Declaratory Relief and Not Monetary Relief

March 25, 2024 — Garret Murai - California Construction Law Blog
Perhaps it should come as no surprise, but public entities get special treatment under the law, and when filing a claim against a public entity, in most cases, a claimant is required to file a claim with the public entity before filing suit under the Government Claims Act (Gov. Code §810 et seq.). But, as the next case demonstrates, that’s not always the case. In Stronghold Engineering Incorporated v. City of Monterey, 96 Cal.App.5th 1203 (2023), the 6th District Court of Appeals examined whether a public works contractor that alleged an extended overhead claim was required to file a Government Claims Act claim before filing suit when its initial complaint was limited to a claim for declaratory relief. The Stronghold Case In December 2015, general contractor Stronghold Engineering Incorporated entered into a construction contract with the City of Monterey for the renovation of the City’s conference center and an adjacent city-owned plaza. The construction contract provided that any modification to the construction contract had to be approved by the City through a written change order. No surprise there. Read the court decision
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Reprinted courtesy of Garret Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Finding Insurer's Declaratory Relief Action Raises Unsettled Questions of State Law, Case is Dismissed

November 05, 2024 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court for the District of Hawaii dismissed the insurer's action for declaratory relief because it raised issues that were unsettled by Hawaii courts. Association of Apartment Owners of Lahaina Residential Condominium, et al., No. 1-24-cv-00075-JAO-BMK, Order Granting AOAO's Motion to Dismiss (D. Haw. Aug. 29, 2024). The case addressed whether a property damage exclusion barred coverage over an owner's claim that a condominium association and its property manager failed to obtain adequate insurance before the condominium's property was damaged by the Maui wildfire in August 2023. Great American filed suit seeking a declaration that it had no duty to defend or indemnify the Association and the property manage, Quam Properties Hawaiiana, Inc., in connection with a demand for mediation submitted to the Association and Quam on behalf of one of the owners. 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

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Administration Launches 'Buy Clean' Construction Materials Push

February 28, 2022 — James Leggate - Engineering News-Record
The Biden administration is moving to put U.S. government purchasing power behind construction materials with lower embodied carbon emissions and pollutants, with the White House launching a “Buy Clean Task Force” on Feb. 15. as part of a slate of initiatives intended to decarbonize manufacturing while boosting the economy. Reprinted courtesy of James Leggate, Engineering News-Record Mr. Leggate may be contacted at leggatej@enr.com Read the full story... Read the court decision
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Nevada Senate Minority Leader Gets Construction Defect Bill to Committee

April 03, 2013 — CDJ STAFF
The Las Vegas Sun reports that Michael Roberson, the lead Republican in the Nevada Senate, managed to get his construction defect reform bill scheduled for a hearing. Previously, the Senate Democrats had determined that all bills pertaining to construction defect legislation would be heard by the Senate Judiciary Committee. However, Roberson managed to convince Kelvin Atkinson, the chair of the Senate Commerce and Labor Committee, to add his bill to the text a mortgage lending measure under consideration by that committee. Roberson had previously submitted his bill to the Judiciary Committee. Senator Tick Segerblom has not scheduled the bill for a hearing and is reported to be an opponent of the bill. While Roberson characterizes the bill as making things better for homebuilders, Segerblom sees it as making things worse for homeowners. “That’s not going to happen,” Seberblom told the Las Vegas Sun. Although the senate voted to send the bill to the Commerce and Labor committee, it still may not get a hearing. Segerblom said he did not know if the bill would be heard in his committee. “We’ve got 60 or more bills to hear and if there’s nothing new in there to change the world, I don’t know why we would hear it.” Atkinson said he has “no appetite to hear the bill.” Read the court decision
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NYC Airports Get $500,000 Makeover Contest From Cuomo

October 22, 2014 — Freeman Klopott and Allyson Versprille – Bloomberg
Governor Andrew Cuomo is holding a competition for plans to upgrade New York City’s two airports, which consistently rank as the worst in the U.S. for design, cleanliness and delays. Cuomo announced the $500,000 design contest for John F. Kennedy International and LaGuardia airports at a press briefing in Queens with U.S. Vice President Joe Biden, who in February caused a stir when he likened LaGuardia to a facility in a third-world country. “This is the next phase for New York,” Cuomo said today at Vaughn College of Aeronautics and Technology in Flushing, home of LaGuardia. The Port Authority of New York and New Jersey, which runs the airports, is allocating $8 billion to construction at the two facilities and Newark-Liberty International over the next 10 years. That includes $2.2 billion as part of a $3.6 billion redesign of LaGuardia’s 50-year-old central terminal, voted America’s dirtiest and most poorly designed by readers of Travel & Leisure magazine in 2012. Mr. Klopott may be contacted at fklopott@bloomberg.net; Ms. Versprille may be contacted at aversprille1@bloomberg.net Read the court decision
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Reprinted courtesy of Freeman Klopott and Allyson Versprille, Bloomberg

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Reasonableness of Liquidated Damages Determined at Time of Contract (or, You Can’t Look Back Again)

October 05, 2020 — Christopher G. Hill - Construction Law Musings
I’ve discussed the continuing litigation between White Oak Power Constructors v. Mitsubishi Hitachi Power Systems Americas, Inc. previously here at Construction Law Musings because the case was another reminder that your construction contract terms matter and will be interpreted strictly here in the Commonwealth of Virginia. The prior opinion in this case from the Eastern District of Virginia court the Court considered the applicability of a liquidated damages provision. In the latest opinion from the Court (PDF) the Court looked at when and how any liquidated damages would be calculated. In its June 22, 2020 opinion, the Court put the issue as follows:

White Oak’s motion for partial summary judgment presents a narrow issue: whether courts may consider the damages actually sustained by a party as a result of a contract breach when deciding if liquidated damages required by a contract “grossly exceed” a party’s actual damages.

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Reprinted courtesy of The Law Office of Christopher G. Hill
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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Anchoring Abuse: Evolution & Eradication

October 09, 2023 — Tim Capowski & Chris Theobalt - Kahana Feld
Over the past few years, the plaintiff bar has expanded its use of improper anchoring tactics. Historically, improper anchoring was seen as a risky tactic in which a plaintiff’s counsel would suggest an outrageous figure for pain and suffering during summation in the hope that the lay jury would either award it or split the difference (cut the suggested figure by half) and, either way, return an excessive or runaway verdict. Plaintiff counsel deployed the tactic infrequently through the turn of the century for fear of alienating the jury by appearing greedy. Two interrelated factors happened to change this dynamic. First, the plaintiff bar worked extremely hard in the intervening years with great success to shed its “ambulance chaser” stereotype by marketing itself as the “protector of the vulnerable”. Second, with the rise in Reptile and punitive tactics spawned in part by the publication of the Reptile handbook, the plaintiff bar also discovered that juries were not alienated by outrageous anchors as long as they were preceded by Reptile commentary essentially to “prime” the jury to punish the defendant rather than compensate the plaintiff with its award. This is not speculation. I recall sitting outside a courtroom with one of New York’s top plaintiff attorneys in 2006 during deliberations on a catastrophic personal injury trial, during which he conceded to me that he was worried he had asked the jury for too large a figure (it was not even eight figures). A decade later in 2016, that same attorney felt no trepidation in requesting nearly $100 million for a comparable injury. He fed the jurors a steady diet of Reptile tactics from start to finish and they dutifully awarded the requested figure. Our research confirms that this two-step strategy (Reptile + improper anchor) preceded every New York nuclear verdict returned from 2010-2022. The same is almost certainly true of most nuclear verdicts in other jurisdictions. Reprinted courtesy of Tim Capowski, Kahana Feld and Chris Theobalt, Kahana Feld Mr. Capowski may be contacted at tcapowski@kahanafeld.com Mr. Theobalt may be contacted at ctheobalt@kahanafeld.com Read the court decision
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UCP Buys Citizen Homes

March 31, 2014 — Beverley BevenFlorez-CDJ STAFF
UCP, a home builder and land developer based in San Jose, California, has purchased “Charlotte-based Southeast regional home building venture Citizens Homes, whose chairman is well-known home building industry veteran Tony Mon, and whose president and chief operating officer is third-generation home builder Scott Thorson,” according to Big Builder. According to a UCP press statement, as quoted by Big Builder, “[t]he purchase price, estimated to be approximately $15 million, is based on the total assets of Citizens at the closing of the acquisition, less cash and cash equivalents, and less certain assumed trade payables. In addition, Citizens is eligible to receive earnout payments from UCP of up to $6 million in the aggregate based on performance over the next five years.” The acquisition is expected to close during the second quarter of 2014. Read the court decision
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