CAMBRIDGE MASSACHUSETTS BUILDING EXPERT
DIRECTORY AND CAPABILITIES

Corps of Engineers to Prepare EIS for Permit to Construct Power Lines Over Historic James River

May 01, 2019 — Anthony B. Cavender - Gravel2Gavel
On March 1, the U.S. Court of Appeals for the District of Columbia decided National Parks Conservation Assoc. v. Todd T. Simonite, Lieutenant General, et al. The case involves an application to the U.S. Army Corps of Engineers (Corps) for a construction permit to build electric power lines over the “historic James River, from whose waters Captain John Smith explored the New World.” The Corps concluded after reviewing the thousands of comments submitted to it in connection with this application, and after considering the views of several government agencies and conservation groups, that an Environment Impact Statement (EIS) was not required, and that its Environmental Assessment assured the Corps that the project would not result is significant environmental impacts. The Court of Appeals has concluded that, based on this evidence, the Corps’ refusal to prepare an EIS thoroughly discussing all these points was arbitrary and capricious. The Corps has been ordered to prepare the EIS and to take special note of its obligations under the National Environmental Protection Act (NEPA), the Clean Water Act (CWA) and its obligations under the National Historic Preservation Act. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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Insurer Could Not Rely on Extrinsic Evidence to Circumvent Its Duty to Defend

February 14, 2023 — Lorelie S. Masters & Yaniel Abreu - Hunton Insurance Recovery Blog
In First Mercury Insurance Co. v. First Florida Building Corp., et al., a federal district court ordered that an insurer had a duty to defend its insured against an underlying personal injury lawsuit. 2023 WL 23116, at *1 (M.D. Fla. Jan. 3, 2023). First Mercury is a cautionary tale about how insurers may try to circumvent their obligations by improperly considering extrinsic evidence when determining whether they have a duty to defend their insureds. First Mercury is a coverage dispute over an underlying personal injury lawsuit that was filed against the insured, a construction company, for injuries the claimant allegedly sustained at a construction site. Id. The claimant alleged that he was at the construction site as an invitee who was “working with” the insured. Id. The insurer agreed to defend the insured against the personal injury lawsuit under a reservation of rights. Id. However, the insurer filed a coverage action seeking a declaration that coverage for the personal injury lawsuit was excluded under the policy. Id. Specifically, the insurer, on summary judgment, argued that the claimant was an employee of the insured who was injured in the course of his employment, thus falling within the employer’s liability and workers’ compensation exclusions in the policy. Id. Although the insurer acknowledged that the personal injury complaint against the insured triggered its duty to defend under the policy, the insurer argued that those exclusions relieved its duty to defend or indemnify the insured. Id. Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth and Yaniel Abreu, Hunton Andrews Kurth Ms. Masters may be contacted at lmasters@HuntonAK.com Mr. Abreu may be contacted at yabreu@HuntonAK.com Read the court decision
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Ex-Engineered Products Firm Executive Convicted of Bid Rigging

March 06, 2022 — James Leggate - Engineering News-Record
A federal jury convicted a former executive at an engineered construction products firm Feb. 1 for his role in a bid-rigging scheme that targeted the North Carolina Dept. of Transportation. 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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Connecticut Supreme Court Finds Faulty Work By Subcontractor Constitutes "Occurrence"

July 31, 2013 — Tred Eyerly, Insurance Law Hawaii
The U.S. District Court in Alabama certified a question to the Connecticut Supreme Court: Is damage to a project caused by faulty workmanship "property damage" resulting from an "occurrence"? With some qualification, the Connecticut Supreme Court answered in the affirmative. Capstone Building Corp. v. Am. Motorists Ins. Co., SC 18886 (Conn. June 11, 2013). Captsone Development agreed to coordinate and supervise construction on a building at the University of Conneticut. Capstone Building was the general contractor. UConn secured an OCIP policy from American Motorist Insurance Company ("AMICO"). More than three years after completion, UConn notified the insureds of alleged defects in the project, including elevated levels of carbon monoxide. The source of the leak was the individual hot water heaters in residential units and insufficient draft of exhaust from the heater.Other defects were found during an investigation. The insureds tendered to AMICO. Coverage was denied because the liability arose out of the insureds' own work.The insureds settled with UConn, paying $1 million each. The insureds then sued AMICO in Alabama and the question was certified to the Connecticut Supreme Court. Read the court decision
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Reprinted courtesy of Tred Eyerly
Tred Eyerly can be contacted at te@hawaiilawyer.com

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New Mandatory Bond Notice Forms in Florida

December 16, 2019 — Brian A. Wolf & Miles D. Jolley - Smith Currie
Subcontractors and suppliers must now use new, statutory notice of nonpayment forms to preserve payment bond claims, and sign each notice of nonpayment under oath. The State of Florida instituted changes to the statutes governing public-project payment bonds (section 255.05, Florida Statutes) and private-project payment bonds (section 713.23, Florida Statutes). The changes went into effect on October 1, 2019. Previously, notices of nonpayment were not required to be signed under oath. Now, the law requires the use of specific statutory notice forms that claimants must sign under oath. Previously, there were no statutory penalties for claimants who exaggerated the amount claimed against a payment bond. Now there are specific statutory penalties against a claimant who willfully or negligently signs a notice of nonpayment that includes a claim for work not performed or materials not furnished, or who is guilty of signing a notice prepared with willful or gross negligence. Public construction payment bonds are governed by section 255.05, Florida Statues, also known as Florida’s Little Miller Act. This statute requires all payment bond claimants who don’t have a direct contract with the general contractor to serve both the bonding company and the general contractor with a notice of nonpayment no later than 90 days after their last date of work or last delivery of materials. The amended statute now requires that the claimant use the statutory notice form and sign the form under oath. If the claimant includes exaggerated claims, or intentionally makes a claim for work or materials not provided, or otherwise prepares a notice with gross negligence, then the bonding company and the general contractor will be able to use such as a complete defense to an otherwise valid bond claim. Reprinted courtesy of Brian A. Wolf, Smith Currie and Miles D. Jolley, Smith Currie Mr. Wolf may be contacted at bawolf@smithcurrie.com Mr. Jolley may be contacted at mdjolley@smithcurrie.com Read the court decision
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Packard Condominiums Settled with Kosene & Kosene Residential

August 27, 2014 — Beverley BevenFlorez-CDJ STAFF
Residents of the Packard Condominiums in Indianapolis, Indiana “have settled a two-year-old lawsuit with developer Kosene & Kosene Residential,” according to the Indianapolis Business Journal. The Homeowners association stated that “the agreement would lead to repayment of a construction loan and avoidance of a special assessment on residents.” The association claimed to have spent “$3 million on ‘renovation and remediation’ of subpar construction of the condo building,” reported the Indianapolis Business Journal. The article also declared that at least 25 subcontractors participated in the mediation. Read the court decision
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A Lien Might Just Save Your Small Construction Business

April 04, 2011 — Douglas Reiser, Builders Council Blog

Many owners incorrectly believe that payment to the general contractor gets the owner off the hook for payment to subcontractors and suppliers. This assumption sometimes fosters the irresponsible owner, who fails to ensure that everyone is getting paid. Fortunately for those contractors further down the contracting chain, this assumption is incorrect.



Suppliers and subcontractors can file a lien to secure payment for their labor and materials. A filing party must offer proper notice (if applicable) and file an adequate and timely lien in the County where the work is performed. You can read our earlier posts on these topics by following this link.



A lien notice and a lien put an owner on notice that your business has provided labor and/or materials for the improvement of the owner’s property (See RCW 60.04.031 for more info). If the owner fails to take care to ensure that your business is paid the law mandates that the owner may have to pay twice.



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Reprinted courtesy of Douglas Reiser of Reiser Legal LLC. Mr. Reiser can be contacted at info@reiserlegal.com

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Have the Feds Taken Over Arbitration?

September 25, 2023 — Christopher G. Hill - Construction Law Musings
All of us in construction have run into mandatory arbitration clauses in our contracts. These clauses are more or less desirable based upon the size of project and other factors that will provide a topic for another post here at Musings or in my class at Solo Practice University (and likely both). In drafting and considering the usefulness of these clauses, make sure that you keep in mind that the Federal Arbitration Act applies to actions in federal court. In short, the FAA gives parties to a contract containing an arbitration clause the absolute right to a stay of a law suit pending arbitration. While this seems obvious, a recent U. S. Supreme Court decision expanded the universe of people that can demand such a stay. In Arthur Andersen LLP v. Carlisle, et. al., the Court stated that any person who is allowed to enforce a contract under state law can obtain such a stay. In short, if a person can make an argument that they have some sort of right to enforce a contract’s terms, that person can get a stay, at least until a court says otherwise. Read the court decision
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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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