Cambridge Massachusetts Building Expert Directory

Arizona Supreme Court Confirms a Prevailing Homeowner Can Recover Fees on Implied Warranty Claims

November 21, 2017 — Rick Erickson - Snell & Wilmer Real Estate Litigation Blog
Originally published by CDJ on August 30, 2017 On August 9th, in Sirrah Enterprises, L.L.C. v. Wunderlich, the Arizona Supreme Court settled the question about recovery of attorneys’ fees after prevailing on implied warranty claims against a residential contractor. The simple answer is, yes, a homeowner who prevails on the merits can recover the fees they spent to prove that shoddy construction breached the implied warranty of workmanship and habitability. Why? Because, as Justice Timmer articulated, “[t]he implied warranty is a contract term.” Although implied, the warranty is legally part of the written agreement in which “a residential builder warrants that its work is performed in a workmanlike manner and that the structure is habitable.” In other words, a claim based on the implied warranty not only arises out of the contract, the claim is actually based on a contract term. Since, in A.R.S. § 12-341.01, Arizona law provides for prevailing parties to recover their fees on claims “arising out of contract” and because the implied warranty is now viewed by the courts as a contract term, homeowners can recover their fees after successfully proving breach of the implied warranty. Read the court decision
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Reprinted courtesy of Rick Erickson, Snell & Wilmer
Mr Erickson may be contacted at rerickson@swlaw.com

NYC Supertall Tower Condo Board Sues Over Alleged Construction, Design 'Defects'

October 04, 2021 — James Leggate - Engineering News-Record
The condominium board at a 1,396-ft-tall residential tower on New York City’s Billionaires’ Row has sued the building’s developers, claiming to have identified more than 1,500 construction and design defects in common areas alone. 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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Key Legal Issues to Consider Before and After Natural Disasters

November 25, 2024 — Patrick Kelly - Construction Executive
While legal considerations are often the last thing on the minds of project owners and contractors during an emergency, construction industry stakeholders should bear in mind the impact of natural disasters on their legal rights, remedies and potential exposure to claims. For all stakeholders, two of the most pressing considerations are: (1) what provisions in their contracts are impacted by a natural disaster and (2) do they have any potential exposure to price-gouging claims? Reprinted courtesy of Patrick Kelly, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the court decision
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Mr. Kelly may be contacted at pkelly@grayreed.com

Top Five Legal Mistakes in Construction

April 04, 2022 — Jonathan A. Cass, Nicholas F. Morello & John A. Greenhall - Construction Executive
Many contractors repeatedly make the same mistakes in negotiating contracts. Here are the most common mistakes contractors make—and how they can be avoided. 1. Not Being Careful With Force Majeure Clauses To protect themselves from liability in the event of unforeseen circumstances like fires, floods, wars, unusual delays in deliveries, strikes, pandemics or acts of God, contractors should ensure their contracts contain robust force majeure provisions. These provisions state that in the event of any extenuating circumstances outside of its control, the contractor is not liable for any damages that result from a delay to the project completion date and is entitled to a time extension. This clause has been critical in addressing COVID-19-related disruptions and the current material shortages. Contractors should be wary, however, of “no damage-for-delay” language, which often appears in conjunction with these clauses. Reprinted courtesy of Jonathan A. Cass, Nicholas F. Morello and John A. Greenhall, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Cass may be contacted at jcass@cohenseglias.com Mr. Greenhall may be contacted at jgreenhall@cohenseglias.com Mr. Morello may be contacted at nmorello@cohenseglias.com Read the court decision
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Another Case Highlighting the Difference Between CGL Policies and Performance Bonds

January 07, 2015 — David M. McClain – Colorado Construction Litigation
During the summer of 2011, Ellis Construction hired Cool Sunshine Heating & Air Conditioning to install the HVAC systems in a single-family home it was building for Gary Doberman and Ellen Robertson in Boulder, Colorado. The homeowners took issue with much of the work performed on their home and tried to negotiate directly with Ellis Construction. When those negotiations broke down, the homeowners sent a notice of claim pursuant to the Construction Defect Action Reform Act, C.R.S. § 13-20-801, et seq. One of the defects alleged in the notice of claim was that the SEERS 13 compressor installed by Cool Sunshine was inappropriate for the system and that because it was installed to run on only one stage, it did not meet the City of Boulder’s code requirements for noise levels. The homeowners therefore requested that the compressor be replaced with a SEERS 20 compressor, which would comply with the Boulder City Code. Read the court decision
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Reprinted courtesy of David M. McLain, Higgins, Hopkins, McLain & Roswell, LLC
Mr. McLain may be contacted at mclain@hhmrlaw.com

Coverage for Injury to Insured’s Employee Not Covered

June 10, 2015 — Tred R. Eyerly – Insurance Law Hawaii
The employee exclusions in the employer's CGL and Umbrella policies barred coverage. Piatt v. Indiana Lumbermen's Mut. Ins. Co., 2015 Mo. LEXIS 32 (Mo. April 28, 2015). Linda Nunley was killed while working for Missouri Hardwood Charcoal, Inc. The kiln's large steel door had been removed and was leaning upright against another kiln when it blew over and crushed Ms. Nunley. Her family filed a wrongful death suit against Junior Flowers, the company's sole owner, director, and executive officer. The complaint alleged that Flowers was negligent in ordering employees to lean the kiln doors upright, even though he knew it was unsafe. The complaint further alleged that Flowers breached a personal duty of care owed to Ms. Nunley and that his actions were "something more" that a breach of the company's duty to provide a safe workplace. Flowers requested a defense under CGL and Umbrella policies issued by Lumbermen's. The policies insured Missouri Hardwood and its executive officers, but excluded liability for a work-related injury to an "employee of the insured." The policies also had a "separation of insureds" provision, stating that the insurance applied "separately to each insured against whom claim is made or suit is brought." Lumbermen's denied coverage. Read the court decision
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Reprinted courtesy of Tred R. Eyerly, Insurance Law Hawaii
Mr. Eyerly may be contacted at te@hawaiilawyer.com

Measures Landlords and Property Managers Can Take in Response to a Reported COVID-19 Infection

May 18, 2020 — Kyle Janecek & Jason Morris - Newmeyer Dillion
Most landlords and property managers are now familiar with steps they should be taking to reduce the spread of COVID-19. But what if a tenant or employee has tested positive with COVID-19? Unfortunately, many landlords and property managers are grappling with this very question. While there’s some clarity as it pertains to evictions in the landlord-tenant context, other considerations like disinfection, required notices, and maintenance, are evolving or unclear. Here are steps landlords and property managers can take in response to an employee or tenant testing positive with COVID-19. Measures Landlords Can Take for Employees For workplaces, there is a large variety of guidelines and procedures that are generally available to review. The Centers for Disease Control and Prevention (CDC) has valuable guidance available online here and here. The Occupational and Safety Health Administration (OSHA) has valuable guidance available online here. In short, if there is an incident where one employee may have exposed others to COVID-19, here are five steps employers should take:

Send the affected employee home and instruct them not to return to work until the criteria to discontinue home isolation are met in consultation with healthcare providers, and state and local health departments. Make sure to maintain all information about employee illnesses as a confidential medical record.
Ask the affected employee whether they have had close contact with any other workers.

Reprinted courtesy of J. Kyle Janecek, Newmeyer Dillion and Jason L. Morris, Newmeyer Dillion Mr. Janecek may be contacted at kyle.janecek@ndlf.com Mr. Morris may be contacted at jason.morris@ndlf.com Read the court decision
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Cameron Kalunian to Speak at Casualty Construction Defect Seminar

October 04, 2021 — Cameron Kalunian - Lewis Brisbois
Los Angeles Partner Cameron Kalunian will speak at the Annual West Coast Casualty Construction Defect Seminar, hosted on October 6-8 at the Aria Hotel and Casino in Las Vegas. In a session on Friday, October 8 at 9:30 a.m. PT titled “Maintaining Relationships in the Storm of Multi-Party Construction Litigation,” Mr. Kalunian, along with one construction general counsel and one insurance coverage counsel, will discuss the impact of litigation on continuing business relationships. The session will specifically focus on balancing risk transfer with business goals in the context of multi-tiered contractor construction projects. The panel will discuss the best practices for communications between and among clients, indemnitors, claims handling professional, coverage counsel and defense counsel. This session is a must for insurance professionals that handle claims involving bodily injury or property damage claims arising out of construction disputes related to projects with multi-tiered contractors. CLE credits will be available for attorneys, along with CEU credits for insurance claims handlers. Read the court decision
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Reprinted courtesy of Cameron Kalunian, Lewis Brisbois
Mr. Kalunian may be contacted at Cameron.Kalunian@lewisbrisbois.com

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